TMI Blog2011 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... Negi, Authorised representative for Respondent Per : Mr. M.V. Ravindran; Since these two appeals are of the same assessee and involving same issue, they are being disposed of by a common order. 2. The relevant fact that arise for our consideration are that appellant herein was purchasing 'Pure Water', classifiable under Chapter heading 2201.19. After purchasing the said pure water from M/s. Gujarat State Fertilizer Company Limited (GSFC for short), in bulk pack/ in tanker load, appellant used to re-pack into 5 litres Jars and carboys and affixing the same with label as 'Pure Water'. Revenue authorities felt that this amounts to manufacture and word 'Pure Water' used by the appellant, would fall into the ambit of Brand Name as given in Chapter 3 of Chapter 22 and 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the findings of adjudicating authority as well as the Commissioner (Appeals). As regards the classification of 'WIDAL-SALMONELLA ANIGENS SET', it is his submission that the said classification has already been settled by the Tribunal decision in the case of J. Mitra Company Limited vs. CCE, New Delhi - 2002 (140) ELT 524. He would specifically takes us through the findings of initiated in the Para 5 of the said judgment. 7. In rejoinder, learned Counsel would submit that J. Mitra Company Limited and Company's decision has been over-ruled by the judgment of the Hon'ble Supreme Court in the case of Span Diagnostics, for which he draws our attention to Para -1, wherein specifically, the appeal numbers are mentioned. It is his submission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority as well as the first appellate authority that how this product i.e.'Pure Water' when packed into 5 Litres jars is distinct from demineralised water in bulk procured by the appellant. First and foremost, there is no dispute that the appellants were receiving demineralised water from GSFC as 'Pure Water' and the classification of the said product was under sub heading No. 22.01.19, attracting nil rate of duty. We find that the said classification would also get attracted to the product packed by the appellant into 5 litre's pack, as there cannot be any claim as 'Pure Water' is brand of any person. Pure water remains pure water and it cannot be considered as branded product. We are fortified in our views by the judgment 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' co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct and the classification done by the Revenue authorities under Chapter heading No. 2201.19 is, incorrect. The impugned order, to that extent is liable to be set-aside and we do so. 11. As regards the classification of the product 'WIDAL-SALMONELLA ANIGENS SET', the Commissioner (Appeals) has held that the classification of this product would fall in Chapter heading No. 3822, as against claimed by the assessee of 3002, by recording following findings:- "With regard to the product, viz. 'Widal Salmonella Anigens Set', it is observed that the adjudicating authority has given a detailed finding by relying upon the product description, technical literature, elements contained in the products, their recognition in common 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant before the lower authorities was very same. The appellants have always argued that antigens remain antigens as received from the supplier and goods were received under Chapter heading No. 30.02 from the bulk supplier. The bulk supplier had classified the product under Chapter 30.02 and the said classification of the bulk supplier has not been challenged or changed by the Revenue till date and it remains the same. It is also seen from the record that this factual matrix is not disputed by the Revenue. On perusal of HSN Notes under Chapter 30, as correctly pointed out by the learned counsel that product 'Diagnostic Kits' has been classified under Chapter heading 30, which the answer to the following 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 exte ..... 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