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TMI Blog2015 (12) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. The Learned Authorised Representative for the Revenue requested time to prepare on the appeal and it was adjourned today. Accordingly, after restoring the appeals in its original number, we proceed to decide the appeals. 3. M/s. Universal Medicare Pvt. Ltd. (Formerly known as M/s. Banner Pharmacaps Pvt. Ltd.) (in short "the assesse") filed these appeals against the impugned orders, where the adjudicating authority classified the products "Primosa" and "Simrose" manufactured by the assessee, as Medicaments under Sub-heading No. 30049069 of the Schedule to the Central Excise Tariff Act, 1985 (CETA) instead of Sub-heading No. 15159091 of CETA as claimed by the assessee, and also confirmed the demand of duty alongwith interest and imposed penalty for the period from January 2006 to March 2013, proposed by eleven show cause notices issued from time to time. Revenue also filed appeal for enhancement of penalty against order dated 28.02.2008, which was not listed today. As per direction of the Bench, Revenue appeal would be linked with the present appeals and treated to be listed in the day's list. 4. After hearing both the sides and on perusal of the records, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under Sub-heading No. 2108.99 of CETA as "Dietary Food Supplement". In that case, the Tribunal observed as under:- "In the present case also, the vegetable oils did not change its identity by putting it in tablet form and mere fact of appellant having marketed it as a food supplement by itself will not be a ground to classify it as a food supplement when it is not food supplement in terms of the HSN Explanatory Note. Furthermore, Chapter 21 is attracted only when the requirements of HSN Note, as extracted supra, is satisfied. The impugned items do not fall in any of the various sub-headings under Chapter 21, as extracted supra. For the purpose of bringing the item under Chapter Heading 21, it has to be : preparation for use either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids) for human consumption. It has to be: Preparations consisting wholly or partly of foodstuffs used in the making of beverages or foods preparations for human consumption or those of preparations consisting of mixtures of chemicals organic acids, calcium salts, etc. with foodstuffs (flour, sugar, milk powder, etc.). As discussed supra, even going b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the product "Primosa" & "Simrose" reads as "Evening Primrose Oil" is a rich and natural source of gamma linolenic acid, an essential fatty acid which helps in maintaining natural good health, to keep skin moist and soft; that many women like to use Primosa prior to and during menstruation. 9. Chapter 15 of CETA under Section III of the CETA covers "Animal or Vegetable fats and Oils and their cleavage products; prepared edible fats; Animal or Vegetable Waxes". Heading No. 15.15 of CETA covers "Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified" Sub-heading no. 15159091 refers to other "edible grade" oils. On the other hand, chapter 30 covers "Pharmaceutical Products" Heading No. 30.04 of CETA includes "Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses (including those in the form of transdermal administration systems) or in forms or packings for retail sale." The Adjudicating Authority observed that the products "Primosa" and "Simrose" contained "Evening Primrose Oil" in geltin capsules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it should be kept in mind that the Customs Authorities classified EPO under Sub-heading No. 1515 of CTA and the dispute was raised by Central Excise Authorities. 12. The relevant portion in the case of M/s Supreme Enterprises (supra) is reproduced below:- "4.1 It is the Revenue's case that the product merit? classification under CTH 3004 as P or P medicaments. Therefore, the onus of proving classification under the said heading lies on the Revenue. The Revenue has not even got the product tested by the Drugs Control authorities to come to the conclusion that the product has therapeutic or prophylactic properties or have been prepared or made so as to have these properties. On the contrary, we find that the product description on the packaging itself, clearly indicates that the product does not have any medicinal use and is not intended to diagnose, treat, cure or prevent any disease. The product has natural ingredients such as, vitamins "A" & "D" and Omega 3, 6 & 9 which has antioxidant properties. There are many products which are naturally occurring which have therapeutic or prophylactic properties. For example products like neem, turmeric, basil leaves, etc., all have medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt identifies Chapter Note 1 (e) to Chapter 15 on which, in relevant part, provides as follows: 1. This chapter does not cover: (e) Fatty acids, prepared waxes, medicaments, paints varnishes, soap, Protestant claims that the encapsulated oils are considered an essential fatty acid (EFA) and is marketed as such. Accordingly, protestant argues, because of Chapter Note 1 (e) the oils are excluded form classification in Chapter 15. However, protestant has misinterpreted the Chapter note. The entire text of Chapter note 1 (e) reads as follows. "This chapter does not cover: (e) Fatti acids (Chapter 38), prepared waxes (Chapter 34), medicaments (Chapter 30), paints (Chapter 32), varnishes (Chapter 32), perfumery Chapter 33), cosmetic or toilet preparatins (Chapter 33), sulphonated oils and other goods of Section VI, [Chapter references added] it is clear that the note is referring to goods which are classified in Section IV of the Tariff Schedule. Protestant's goods are not the type of highly manufactured industrial fatty acids which are classified in Chapter 38, HTSUS, and thus, the notes exclusion does not apply." 14. In view of the above discussions, we hold that the products ..... X X X X Extracts X X X X X X X X Extracts X X X X
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