TMI Blog1997 (12) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... lcium, honey, lecithin and vitamins. According to the direction for use, the granules are to be added in a measureful to a glass of warm milk and to be taken adding sugar to taste. The jurisdictional Asstt. Commissioner of Central Excise, Div. I, Aurangabad issued 2 show cause notices for the period April 1995 to August 1995 and from September 1995 to January 1996 on the ground that honeypro is nothing but an edible preparation as food supplement for general health and energy. Since the preparation does not have any therapeutic or prophylactic use, the Asstt. Commissioner held that the correct classification should be under sub-heading 2108.90 of Central Excise Tariff Act as other edible preparation in the form of food supplement. The total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. standards. It was further urged that a perusal of its composition would show that the product contains zinc 700 PPM which is beyond the permissible limit of 50 PPM as mentioned under the Prevention of Food Adulteration Rules and such percentage of zinc contained can only be used for drug and medicine preparations. The ld. Counsel also relied upon the Supreme Court decision in the case of B.P.L. Pharmaceuticals Ltd. v. Collector of Central Excise, Vadodara - 1995 (77) E.L.T. 485 (S.C.) and also Madhya Pradesh High Court decision in the case of Panama Chemical Works v. Union of India - 1992 (62) E.L.T. 241, wherein the Madhya Pradesh High Court had held that digestive tablets having 3% active ingredients as per Ayurvedic texts and 97% sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with vitamins. The ld. DR relied upon the Supreme Court decision in the case of Shree Baidyanath Ayurved Bhavan Ltd. v. Collr. of C. Ex., Nagpur - 1996 (83) E.L.T. 492 (S.C.) for characteristics of the medicine as one that it is prescribed by a Doctor with dosage and has to be taken for a prescribed period. In the present case, applying those criteria, there is no indication whether these characteristics are fulfilled by the product in question because it is essentially an edible food preparation with enriched vitamin. It can be taken for a long period. The ld. DR also pointed out that in this case no evidence has been led to substantiate the claim that the product is available only on a prescription by Doctor. The order of the Asstt. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daily. As for the nature of the product, it is essential for considering it as a drug to apply the test laid down by the Supreme Court in the B.P.L. Pharmaceuticals Ltd. case supra as to whether it is substance intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animal. The application of the product as indicated by the appellants in the appeal memorandum goes to show that the product is prescribed for post surgical and convalescence patients, children in growth phase. There is no indication clearly as to what is the disease that the product is to prevent or treat. It may be noted that in the B.P.L. Pharmaceuticals Ltd. case the Supreme Court noted the selsun shampoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. It is also noted that in this case, the appellants have not indicated what is the active ingredient in the preparation and what is the disease which it seeks to treat or prevent. On the other hand, the material on record would lend support to the view as already noted above that the product as found by the Asstt. Commissioner as nutritional supplement. The appellants have also not led evidence from experts as in the other cases cited by them to show that the product is prescribed as a medicament. If the zinc content of the product would take it out of the purview of nutritional supplement, there should be suitable indication on the product label about its use only on a doctor s prescription. In one of the labels on record there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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