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2019 (12) TMI 522 - CESTAT NEW DELHIClassification of goods - Beneficiale Liquid - DSN capsules - whether classifiable under CETH 2106 or under 3004? - Area Based exemption - N/N. 49/2003-CE dated 10.6.2003 HELD THAT:- From the perusal of the two entries, it is clear that the goods will be classified under the heading 2106, only if the products are not covered under Chapter heading 3004 of the Central Excise Tariff. It is the contention of the Appellant that their product is covered under the definition of medicament on the ground that these products are used for cure/treatment of diseases and being regularly prescribed by the medical practitioners. The Appellant has also produced the affidavit on this behalf, from the various medical practitioners along with the prescriptions. The prescription indicates that two products in question, namely DSN capsules and Liquid Beneficiale, are being prescribed by the medical practitioners in treatment of diseases to booster immune system. The products are prescribed by the doctors for removal of condition of weakness and also to boost immunity of the patients along with other medicines. The entry that is Chapter 2106, which is relied upon by the Revenue is only residuary entry. The product which is more appropriately classified under the specific headings has to be preferred before resorting to classification of goods in the residuary entry. It is also a fact that merely because the product can be used otherwise it will not be become the foods supplement. The adjudicating authority in the impugned order has held that the Appellant was not having the drug licence during the impugned period. However, the same is found to be incorrect, in view of submissions made by the learned Advocate and also by the production of copies of Drug Licence which proves the fact of having the valid licence for the manufacture, of the products namely ‘DSN Capsules’ and ‘Liquid Beneficiale’ - We are in agreement with the contention raised by the learned Advocate that the drug licence is issued under generic name and not in the trade name of the drugs manufactured. This fact is evident from the Drug Licence and also the composition of the products of the two drug licences. There is no justification of classification of the two products in question under heading 2106, but they are appropriately classifiable under Tariff Heading 3004 of Central Excise Tariff Act - As we held the goods are classified under Heading 3004 of CETA, the Appellant would be entitled for the benefit exemption from central excise duty under Notification No. 49/2003 - appeal allowed - decided in favor of appellant.
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