TMI Blog2017 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of the subject issue of classification of the subject products. Further, the department has failed to provide any evidence to prove the intention to evade the duty on the part of the appellant - Demand confirmed for one year only - Appeal allowed partly. - E/55443, 57204/2013- EX [DB] - 55909-55910/2016 - Dated:- 19-12-2016 - Mr. Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Sh. B.K. Singh, Ld.advocate for the appellant Sh. R.K. Manjhi, Ld. AR for the respondent ORDER Per Ashok K. Arya 1. Govt. Opium and Alkaloid Factories are in appeal against Commissioner, Indore s order dated 04.11.2012 whereunder duties of ₹ 4,75,90,984/-(Rs. Four crore seventy five lakhs ninety thousand nine hundred eighty four only) and ₹ 32,36,215/-(Rs. Thirty two lakhs thirty six thousand two hundred fifteen only) along with the interest and penalties have been confirmed against the appellant. 2. The matter pertains to liability of Central Excise duty on the sale of the items namely Nascopine B.P. and Papavarine S.R. 3. The appellant has been represented by the Ld. Advocate, Sh. B.K. Singh and Revenue has been represented by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products namely Noscapine B.P. and Papavarine S.R. are derivatives of opium and by virtue of chapter note 9 to the Chapter Headings 29 of the Central Excise Tariff are excluded from the Chapter Heading 29 of the Central Excise Tariff; and therefore, they are not be classified in the said chapter 29. Consequently the said products would be exempted from payments of duty of Central Excise. 7.1 On the other hand, Revenue vehemently submits that the items namely Noscapine B.P. and Papavarine S.R. being non-narcotic products are to be classified by under Chapter Heading No. 2939.1900 and are liable to payment of duty of Central Excise. 8. Firstly let us reproduce the Chapter Note 9 to chapter 29 of Central Excise Tariff below: Chapter 29 Notes: 1. 2. 3. 9. This Chapter does not cover products containing alcohol, opium, Indian hemp or other narcotic drugs. For the purposes of this Note, alcohol , opium , Indian hemp , narcotic drugs and narcotics have the meanings assigned to them in Section 2 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955). 8.1 Above note 9 to Chapter 29 makes it clear that it will not cover produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arcotic drug or narcotic as given in the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955) . The definition of opium also covers the substance which are capsules of the poppy (Papaver somniferum L) in the given forms; any mixture with or without neutral materials of given forms of opium and includes any derivative of opium. 9.1. We find that the subject items (Noscapine B.P. and Papavarine S.R) are not capsules of poppy (Papaver somniferum L) in the given form and are also not a mixture having the given forms of opium. Further the subject items (Noscapine B.P. and Papavarine S.R) cannot be covered by the definition of derivative of opium as both these items are neither medicinal opium nor prepared opium, nor morphine or its salts and its derivatives. At the same time, it appears that the subject items are not covered by the definition of narcotic drugs or narcotic also as these are neither coca leaf, nor coca derivative nor opium nor derivatives of opium etc. as per the definition given in Section 2 (h) of Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955). 9.2. The contention of the appellant is that the subject items are derivati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), by the Central Government to declare the substances to be narcotic drugs, for the purpose of the said Act also does not cover the above products namely Noscapine B.P Papavarine S.R. The Noscapine B.P Papavarine S.R are also not covered by the Notification No. S.O. 1055 (E), dated 19.10.2001 issued by the Central Government under Section 2 of NDPS Act, 1985. Thus, it is inferred that both were non-narcotic products and these goods belonging to alkaloids of opium and their derivative, salts hereof, therefore required to be classifiable under Chapter sub Heading No. 29391900 of Central Excise Tariff. Further, it is seen that definition or the composition of Noscapine B.P given under wiki pedia are as under: Noscapine B.P (also knonw as Narcotine, Nectodon, Nospen, and Aanarcotine) is a benzylisoquinoline alkaloid from plants of the Papaveraceae family, without significant painkilling properties. This agent is primarily used for its antitussive (cough-suppressing) effects. It has also been shown to have anticancer activity. The other product namely Papavarine S.R is also defined as Alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Opium and therefore, they may be treated as opium and hence, they do not fall under Chapter 29 as per Chapter note no. 9 of Section VI of the Central Excise Tariff 1958 (5 of 1986). In this regard, it is seen that the chapter note no.9 of Section VI of the Central Excise Tariff 1985 (5 of 1986) excludes the products containing Opium etc. As discussed in the in the foregoing paras, it is clear that both the products were non-narcotic products and these goods belonging to alkaloids of opium and their derivative, salts thereof, in the instant case both the products as such did not contain opium . Although, they are generated from the opium, but do not contain opium, and in this view, the contention of the noticee is not correct. 9.4. Based on the discussions made hereinabove in respect of classification and excisability of the item we agree with the findings of the impugned order with the reasons given therein and the same is hereby sustained. In the result, the appeal has no merit and the same is dismissed on the subject items above. 10. The Appellant s Contention on Invocation of Extend Period Clause: The appellant submits that there is no willful misstateme ..... 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