TMI Blog2008 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ment' falling under heading 3003.10, Revenue's claim is that the same is properly classifiable as a 'food product' under Chapter sub-heading No. 2108.99. By holding so, duty of ₹ 5,36,387/ stands confirmed against them along with imposition of personal penalty of ₹ 30,000/-. 2.1 After hearing both the sides duly represented by Sh. Prakash Shah, ld. Advocate appearing for the appellants and Sh. Sameer Chitkara, ld. SDR appearing for the Revenue, we find that the various ingredients, as per Master Formula Card of the product Zest Powder for a batch of 200 kgs. are as under : Sl. No. Ingredients Quantity in Kgs. 1. Soya Protein Hydrolysate20% I.H (Nitrogen content not less than 0.25 gm.) 193.80 2. Sodium Methyl Paraben I P. 0.260 3. Sodium Propyl Paraben I P. 0.130 4. Colloidal Silicon Dioxide I P. 0.100 5. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of which the Zest powder is to be taken. (c) From the raw materials used for the manufacture of Zest Powder, it appears that 199.505 kgs. of raw material is of In-House specification and only 0.495 kgs. of IP specifications is used in a batch size of 200 kgs. The product 'Zest Powder' manufactured by the appellant is basically a food product and can be described as a fortified food being enriched with vitamins and minerals. (d) There is no indication of the label of the product 'Zest Powder' that. It is available in the market only on prescriptions of doctor. Name of the disease, which the product 'Zest powder' is to prevent or cure. Dosage and duration for which the product can be taken. 4. The appellants, before the authorities below, raised the following contentions (a) The fact that the Zest powder is manufactured under the authority and licence issued by the Drug Control Authority is sufficient to hold the goods as of medicaments. (b) The labels of the said product indicate various constituents and most of them are pharmacopoeial constituents having prophylactic uses and the said label indicate that the product is manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body. Whereas, the medicine is a substance which is consumed for a limited and specified purpose of preventing or curing some disease or infirmity under the advice of a medical expert. According to Concise Oxford Dictionary food is any nutritious substance that people or animals eat or drink or that plants absorbs in order to maintain life and growth . According to the same dictionary, the medicine or the medicaments is a drug or other preparations for the treatment or prevention of disease . P P medicaments is defined in Note 1(ii) of Chapter 30 of the Central Excise Tariff Act, 1985 in terms of a drug or medicinal preparation for the use in the internal or external treatment of, or for the prevention of ailments in human being or animals. Thus, the purpose the characteristics and the consumption patterns of goods and medicines are totally different in the show cause notice, it is claimed that Zest Powder is a food product only and can be described as fortified food enriched with Vitamins and Minerals. On the other hand, the appellant has claimed it as medicine. On examination of the appellant's label on the product, which is cited as materials evidence in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are essential for preventing the diseases. But in the context of medicines, prophylactic medicines are only those, which prevent the specific diseases by enhancing fighting and resistance capacity to the body or by providing safety mechanism. That some foods or beverages can be akin to the prophylactic medicines is recognized in Chapter 30 of the Central Excise Tariff Act, 1985 and to avert the confusion on this point. Note 1(a) in Chapter 30 is inserted for exclusion of such food supplements, tonic beverages and mineral water etc. from the purview of medicaments of Chapter 30. The appellants has, however, claimed its product as P P medicaments on several grounds emphasizing mainly that the said product is manufactured under Drug license, it is consumed on prescription of doctors only, it is sold through medical shops, its ingredients are of IP standard and its physician samples are distributed. The case is made out by the assessee that the product is manufactured under the Drug licence and on that basis it is claimed as Drug. However, it is not found to be correct as the licence from Food Drug Authority, Gandhinagar, was obtained on 23-1-2001 only but as per the classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the appellant's product 'Zest Powder'. The sole question required to be decided is whether the said product can be considered to be a medicament so as to fall under Chapter 30. We have already produced the descriptions given on the label of the product, which projects the same to be a powder of protein rich nutritional formula and required to be taken by dissolving the same in milk or water or any other liquid drink. The same also reflects upon the fact that the powder in question is having high nutritive value and makes a delicious drink, when dissolved iii liquid. The appellants has not been able to show us any indication in the label to the effect that the same is required to be taken for a specific disease or is meant for a specific ailment. The same admittedly stands declared by the appellant as versatile nourishment with high quality of protein and essential nutrients. The same has been equated with a drink to be taken in routine by dissolving the same in a cup of milk. In fact, we find that the photograph by dissolving 'Zest Powder' content in a cup is printed on the label, in the same manner in which a cup of milk containing Bhournvita or Horlick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Tri.)], 'Honeypro granules' described as 'readily disgestible milk protein enriched with lysine, methionine, iron, zinc, calcium, honey, lecithin and vitamins, used for building up of general health and energy iii post-surgical and convalescence patients and those suffering from diseases like TB, diabetes, etc. were held to be not medicaments falling under Chapter 30, but food supplements under Chapter 21. By taking note of the fact that there was no indication as to what is the active ingredients, in the preparation and what is the disease which it seeks to treat or prevent, the product cannot be held to be a medicament. Similar is the position of the present case also. There is nothing to show that the product is useful in a particular disease or for prevention of the same. 11. The appellants have now placed on record certain certificates given by the Doctors, which are to the effect that they prescribed 'Zest Powder' during pregnancy and after delivery for lactation purposes and to post-operational patients. All the certificates are general in nature. Some of them indicate that the Zest Powder is prescribed for better tissue building in post-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (154) E.L.T. 328 (S.C.)], wherein by considering the various constituents of the product and the diseases for which the same were meant and that the ingredients were as per the Ayurvedic Text Books, it was held that the same were medicaments. We find that product in each case has to be considered in the light of the various factors and criterias laid down by the courts from time to time. As already discussed, the said product does not pass the said criteria of common parlance test, absence of indication of any disease, projection of the product in the market and the ingredients being used for treatment of a particular disease etc. As such, we are of the view that the product in question cannot be held to be a medicament. The same is accordingly classifiable under Chapter 21, as food product. 14. Before we part, we would like to reproduce the relevant part of Commissioner (Appeals)' order vide which he has dealt with the appellant's plea of the product being distributed as free of cost amongst the medical practitioners as physician samples. The distribution of physician samples to the medical practitioners also do not necessarily establish that the product is a med ..... X X X X Extracts X X X X X X X X Extracts X X X X
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