9911796707
TMI Blog2011 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly the product will attract duty. Another issue raised in this case is whether 'WIDAL-SALMONELLA ANIGENS KIT' would fall under Chapter heading No. 30.02 as claimed by the assessee or under 38.22, as held by adjudicating authority. 3. Adjudicating authority did not accept the contentions of raised by the appellant and confirmed the demands raised on the appellant by discarding the defence of the appellant, in respect of both the issues. Aggrieved by the order in original, appellants preferred appeal to the first appellate authority, who also concurred with the views of the adjudicating authority and confirmed the demands on the appellant. Hence these appeals. 4. Learned counsel appearing on behalf of the appellants would submit that, as regards 'Pure Water', the issue is very well settled by the decision of the Hon'ble Supreme Court in the case of Tata Tea Limited - 2002 (142) ELT and the decision of the Tribunal in the case of Nestle India Limited - 2004 (170) ELT 474, CCE vs. Kamani Foods - 1999 (114) ELT 644 and Zeneca ICI Agro Chemicals Limited vs. CCE -- 2009 (114) ELT 770. It is his submission that all these decided case laws clearly indicate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that Span Diagnostics decision holds good even today. 8. On careful consideration of the submissions made by both sides, we find that the issue involved is regarding classification of two different products, which we intend to deal separately. 9. As regards, the classification of 'Pure Water', the Revenue authorities are of the view that the appellant having repacked the said water from tanker or bulk water purchased from M/s. GSFC, will fall under the category of deemed manufacture, as provided in Chapter 3 of Chapter 22. Learned Commissioner (Appeals) has recorded following findings. :- "In this regard, I find no merit in the submissions of the appellants that the process undertaken by them does not result in the manufacture of a new product and that the label 'Pure Water' cannot be regarded as a brand. I find from the invoice of M/s. GNFC that the product sold by them has been described as DM Water, i.e. De-Mineralized Water, whereas the product sold by the appellants is in the name and style of 'Pure Water'. As per the appellant's own submission, the product is used by doctors, laboratories and pharmaceutical industry and thus the product has a distinct market. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the Hon'ble Supreme Court in the case of Tata Tea Limited, wherein their Lordships, in Para 6 has clearly enunciated the law, which reads as under :- 6. In order to satisfy the definition of 'tea' under Section 3(n), a product should be commercially known as tea and it should be made from the leaves of the plant of Camellia Sinensis (L) O. Kuntze. 'Instant tea' satisfies both these conditions. By the very name, the product namely 'instant tea' conveys that it is a 'tea'. The term 'instant tea' is not the brand name of the product manufactured by the assessee but the name of the product itself. It is a variety of tea. Further, the term 'instant tea' gives a meaning that it is a 'tea', which can be prepared/used instantaneously. Merely because the product is known as 'instant tea', it does not cease to be known commercially as 'tea'. Whether tea is consumed as hot beverage or a cold beverage depending upon one's liking and taste, it does not make any difference in deciding whether it is a tea falling within the definition of Section 3(n) of the Act. In our view, the manner of preparation of tea and the process of manufacture of 'instant tea' powder cannot take away 'instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon parlance and their specific uses for specific purposes under specific atmosphere by the laboratory and clinic and come to the conclusion that the product was classifiable under sub-heading 3822.00 of the CETA schedule. In this regard, I am in agreement with the observations of the adjudicating authority as under :- "In view of the above discussion and findings, I find that 'WIDAL-SALMONELLA ANIGENS SET' Blood Chemistry Reagent Kits) manufactured by them and mentioned in drugs licence by issuing authority, is a composite product and the same is known as diagnostic reagent SET ordinarily. The testing method mentioned above of the product can be followed only by a qualified person and in clinic or pathological laboratory and the most important fact is that the Widal test is for identification of fever (P.U.O.) as enteric as well as one of the screening test for potential carriers of the disease is not itself a micro organism. So 'WIDAL-SALMONELLA ANIGENS SET', is to be composite product falling in the category of 'prepared diagnostic or laboratory reagents." In this regard the argument of the appellants that the product falls under heading 3002.00 of the CETA schedule is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing description, we reproduce the same :- "(E) Diagnostic Kits. Diagnostic kits are classified here when the essential character of the kit is given by any of the products of this heading. Common reactions occurring in the use of such kits include agglutination, precipitation, neutralization, binding of complement, haemagglutination, enzyme-linked immunosorbent assay (ELISA), etc. The essential character is given by that single component which governs to the greatest extent the specificity of the test procedure." It can be seen that, groups which answer to the description of 'Agglutination' would fall under chapter 30. On perusal of show cause notice, we find that the show cause notice starts with the premise that the 'WIDAL-SALMONELLA ANIGENS KIT' is functioning on the parameters of agglutination of the blood in order to test whether the patient/person is infected with typhoid or not. We also find that the HSN explanatory notes under Chapter 38.22 clearly exclude those, which are falling under Chapter heading 30.02 or 30.06. It has been amply demonstrated before us by the learned counsel that the 'WIDAL-SALMONELLA ANIGENS KIT' is nothing but antisera and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
