TMI Blog1997 (5) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... drum would make 6900 doses. 1.3 In order to understand the claim of the appellant under Heading 30.03, relevant portion of the said tariff heading and the relevant Chapter Note 2(i) of Chapter 30 are reproduced below :- Heading No. Sub-heading No. Description of goods Rate of Duty (1) (2) (3) (4) 30.03 Medicaments (Including Veterinary Medicaments) Nil 30.02 Medicaments (Other than patent or proprietory other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homeopathic or Bio-chemic system. Note 2(i) of Chapter 30 is also reproduced below :- For the purposes of Heaidng No. 30.03 - 2. (i) `Medicaments means goods (other than food or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within Heading No. 30.02 or 30.04 which are either :- Products comprising two or more constituents which have been (a) mixed or compounded together for therapeutic or prophylactic uses; or Unmixed products suitable for such uses put up in measured (b) doses or in packings for retail sale for use in hospitals." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He has also imposed a penalty of Rs. 5 lakhs. Hence the second appeal bearing No. E(SB) 4009/95 before us. 2.1 Learned Advocate Shri P.K. Das has again reiterated and elaborated upon all the three pleas, as aforesaid, taken before the Collector in the matter relating to demand of duty. Pleas on classification under Tariff Heading 30.03 would also cover the other matter relating to classification of the product Liquid Paraffin (heavy) I.P. We shall deal with these pleas seriatim. 3.1 Learned advocate for the appellant has urged that it is admitted that the product conforms to the I.P. standard as confirmed by the Chemical Examiner on test. It is mentioned on the label affixed on the container (drum) containing the product that it contains 207 litres, 6900 adult doses. In other words, each dose is of 30 mls. From relevant portion of the I.P., dose of the product varies from 8 ml to 30 ml. He further submits that Liquid Paraffin s therapeutic and prophylactic use is not in controversy. The product occurs in the I.P. He, therefore, submits that the product being an unmixed one and it is packed in 6900 adult doses, as mentioned on the label, it satisfies the requirement of `medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be regarded as being put up for retail sale for therapeutic or prophylactic use if they are put up in a form clearly specialised for such use. Medicaments consisting of mixed products for theraputic or prophylactic uses and not put up in measured doses or in forms or packings for retail sale are classified in Heading 30.03 (see the corresponding Explanatory Note). [Emphasis supplied by learned JDR] Learned JDR highlights that measured doses applies to such predetermined/premade `single doses whether in bulk or retail packing. He further points out 207 litres of `paraffin I.P. comprising 6900 doses - each dose of 30 mls - without being parcelled out separately in such 6900 doses - would not mean that the product is put up in measured doses. It is admitted that such `drums are sold to drug manufacturers for repacking in smaller packs. If the exact quantity equal to the number of doses had not been present in the drum, it would have meant wastage of the drug in smaller packs. Exact no. of smaller packs should have been made from the larger pack, otherwise some medicine will remain unpacked. In that sense, every drug packing would be in packing of `measured doses and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription of Heading 27.10 because it is not disputed that it is a petroleum oil based product. 3.4 As regards applicability of Notification 242/88-C.E., dated 17-8-1988, the adjudicating authority, namely Collector of Central Excise in the demand matter [Appeal No. E(SB) 4009/95] has not applied his mind independently. He has relied on Assistant Collector s adjudication order confirming classification of the product under Heading 27.10. He has also relied on the Collector (Appeals) order in the matter of classification. Finally, the adjudicating Collector of Central Excise observes in para 6.3 of the impugned order as follows :- Since the issue is pending with Hon ble CEGAT regarding classification of the product, the question of availability of the benefit of the relevant exemption notification by the assessee will also be looked into by the Hon ble CEGAT. Learned advocate has, therefore, submitted that the impugned order in E(SB) 4009/95, relating to demand of duty is vitiated by lack of application of mind by the Collector of Central Excise to a vital plea made by the appellant. Demand of duty confirmed in the impugned order is, therefore, not tenable. 3.5 Learned JDR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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