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TMI Blog1998 (9) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri C.S. Lodha, ld. Advocate for the Appellants submitted that the label of the product "OSSIDOS" clearly mentioned the composition of the product and also the fact that the product was sold in unit container of 180 ml; that the impugned product was based on protein and carbohydrates; that the addition of minerals such as Calcium, Iron and Vitamins were for the promotion of natural growth of children and nutrition for women during pregnancy; that the Aurangabad Municipal Corporation and Food and Drug Administration had certified the impugned products to be food supplement; that according to the report of the Deputy Chief Chemist, Ossidos is to be taken as a Tonic to provide Calcium and Vitamin etc. and not as a food by itself; that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pack itself but these were not regarded as medicines but as articles of foods. He referred to Order No. 735/91-C in the case of C.C.E., Pune v. Li-Taka Pharmaceuticals Ltd. in which the product "Prolita Syrup" was classified under Item 1B despite the argument of the Revenue that the product was made of protein fortified with Vitamins and iron and the product was sold on a prescription by a Medical practitioner and the doses were to be taken as per the direction given by the Medical practitioner. He also mentioned that a similar product namely `Probofex' manufactured by the appellants themselves had been classified as a food supplement falling under Item 1B by the Collector (Appeals) vide Order No. KVV-158/91, dated 13-5-1991 which was up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely Probfex, Energex and Protein which were subject matters of decisions relied upon by the Counsel, impugned product "Ossidos" was more rich in vitamins which is evident from the chart of composition of various products given by the ld. Advocate. Product Ossidos, besides containing vitamins B12, like all other products, does contain Vitamin B1, B2, A, D3, E acedate and Calcium Gluconate which are having therapeutic value. He further mentioned that in most of the decisions relied upon, there were certificate from Drug Authority that these were not drug and no such evidence was there in the present case. He referred to the report dated 20-12-1985 of the Dy. Chief Chemist, Bombay according to which Calcium Gluconate and Vitamin A, D, E & B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the Appellate Tribunal held the products, namely Bifuran and Neflin as P or P medicine as given in Item 14E. The Tribunal did not accept the argument of the assessee that those products did not have a Therapeutic effect having regard to the dosage prescribed in their literature for the products to counter its stress effects such as dehousing, debeakeing, deworming and extremes of weather. He also relied upon the decision in the case of C.C.E. v. Aaron Pharmaceuticals (P) Ltd. - 1994 (74) E.L.T. 241 (T) in which the product "Aprot" was held not to be falling under Item 1B as it was not a prepared or preserved food; that the product was in the nature of a tonic normally taken as food supplement. In rejoinder, the ld. Advocate for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icine. He has only mentioned that calcium gluconate and vitamins have therapeutic properties and the form and nature of the product indicates that it is to be taken as a tonic. The Appellate Tribunal in a similar situation in the case of C.C.E. v. Li-Taka Pharmaceuticals Ltd. - Final Order No. 735/91-C has held as under : "...Are these factors sufficient to reverse the lower authorities findings that the item is food supplement? It is well settled that the onus to prove classification is on the Revenue. It is also well settled that the Trade parlance and commercial understanding of a product is a pre-requisite for a classification of a item, in the absence of any definition in the Tariff item. The Revenue in this case has not placed any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence, a certificate issued by the Food and Drug Administration of Maharashtra and the precedent decisions. The ld. Counsel for the Appellant has rightly relied upon the decision of the Bombay High Court in the case of Glindia Ltd. v. U.O.I. - 1988 (36) E.L.T. 479 in which the High Court did not accept the contention that the products must be considered as medicine because by feeding vitamins animals' ailments are prevented. The High Court observed that the preparation, namely, vitablend W.M. Forte and vioral "are used to supplement animal feed. Sometimes animal feed or poultry feed is already fortified with these vitamins when sold. Sometimes, however, farmers prefer to add the vitamins either to animal feed or poultry food separately ..... X X X X Extracts X X X X X X X X Extracts X X X X
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