TMI Blog2017 (9) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. These are not having any therapeutic or prophylactic value. K-Link Puyikang/Puyikang Takara is basically for ladies hygiene. There is no curative or therapeutic value for these products. At the best, some of these products have effect of removing toxins, overall enhancing the well-being of the person consuming or using them. The appellant-assessee themselves clearly printed in the literature as well as on the product package that these are not drugs and not intended to diagnose, treat, cure or prevent any disease. The product as packed and marketed should be considered for classification. When the appellant-assessee themselves claimed that these are not for curing or treating any disease, the question of considering them as medicaments does not arise. In the present case, we are not dealing with any ingredients or products which are claimed to be in the Ayurvedic text or in recognized Pharmacopoeia. In fact, the Hon ble Supreme Court examined the scope of Chapter 30 and the meaning of the term medicament . As noted earlier in this order and discussed elaborately in the impugned order, none of the products which are examined in the present dispute have any qualities which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and concluded on their classification. These imports were covered by 33 Bills of Entry. The assessment in respect of 30 Bills of Entry were provisional due to pendency of final valuation with Special Valuation Branch. Three Bills of Entry were assessed finally as same could not be linked to SVB during the material time. 3. The original authority in the impugned order examined each one of the imported items and held on their classification and also valuation to be followed. The appellant-assessee accepted the findings in respect of six items and paid the differential duty. Regarding the remaining nine items, the appellant-assessee contested the findings of the original authority and preferred this appeal. 4. The original authority dropped the demand for differential duty in respect of the goods covered by three Bills of Entry the assessment for which were not provisional, holding that such demand was hit by limitation. Consequently, he dropped penal proceedings against the main appellant-assessee and other individuals/CHA against whom proposal for penalty was made in the SCN. Aggrieved by this, Revenue preferred these five appeals. 5. We heard the Ld. Counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (chapter 29), pharmaceutical products (chapter 30). We considered the dispute in respect of each item for a finding. 8.1 ROOIBOS SOD Drink The original authority examined the products catalogue and recorded as below:- As per the product literature in the products Catalogue, Rooibos SOD Drink is a unique health benefit tea from South Africa, grown only in the magnificent unpolluted area in the Cedarberg region of the Cape of Good Hope. Rooibos SOD Drink is a caffeine free drink. It has a soothing effect on the central nervous system and is well accepted by people for natural health maintenance. It is rich in Iron, Potassium, Magnesium, Manganese, Copper, Calcium, Zinc, Fluoride and Flavonoid, very strong anti-free radical which slows down ageing and improves the immune systems. Rooibos SOD Drink has 50 times more SOD, as well as other antioxidants that are not found in other drink making Rooibos SOD truly unique and far superior. Rooibos SOD Drink also supplements the daily amount of calcium and especially fluoride which is required for the development of strong teeth and bones. Rooibos SOD Drink is a truly unique beverage with a full range of health benefit. A refreshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic beverages, not including fruit or vegetable juices of heading 20.09.CTH 2202 does not cover nutritional health drinks therefore classification under CTH.CETH 2202 is not correct. The Importer had also classified Rooibos SOD Drink in CTH 3004, which pertains to medicaments (excluding goods of heading 30.02, 30.05 or30.06) consisting of mixed or unmixed product for therapeutic or prophylactic uses, put up in measured doses ( including those in the form of transdermal administration systems) or in forms of packing for retail sale. At the bottom of the above product literature there is disclaimer which reads as: This product is not intended to diagnose, treat, cure or prevent any diseases. As discussed at the outset, this disclaimer means that the products is not a medicament and does not have any therapeutic value. As can be seen from the product literature, Rooibos SOD Drink is marketed only as a nutritional health drink and therefore it cannot be classified in CTH 3004. Rooibos SOD Drink is correctly classifiable under CTH 210690/ 21069099 and CETH 210899. 8.2 We have perused the sample of the product submitted by the appellant. In the package it is clearly mentioned that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuts or other edible parts of plants (heading 20.08). Micro-organisms of heading 21.02 put up as food supplements for human consumption (heading 21.02). The above clarificatory notes when applied to products in dispute make is clear that these cannot be considered as pharmaceutical products under Chapter 30 as now claimed by appellants. 8.3 BAE/K-Liquid Chlorophyll: The appellant claimed the classification under Chapter 29 as organic chemicals. The Revenue classified the same under 210690/2106 9090/2108 99. We have perused the product literature as well as the samples of the said product. It is very clear that the same is marketed as Nutritional drink , Botanical beverage , Universe Induced Energy . It is apparent that the claim of he appellant-asssessee to classify the product as organic chemicals is not tenable even on a plain reading of the Chapter as well as the product literature. We note that the details of the product literature have been reproduced by the original authority and applying the Note (14) of the explanatory notes for CTH 2106, the original authority classified the product under 2106. The product cannot be considered as a organic chemical. Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng classification under Chapter 30. We are in agreement with the original authority for classification of this product under Chapter 21. 8.7. K- Link Puyikang/Puyikang Takara, BAE Power Oil/K-Energy Power Oil, kinotakara, and Power touch: These products were sought to be classified under Chapter 30 as medicines by the appellant-assessee. The original authority had examined the product literature, the contents and the usage of the said products and concluded that these are to be correctly classified under Chapter 33 which covers essential oils and resinoides; perfumery, cosmetics or toilet preparations. We have perused the product literature and samples of the impugned goods. None of these products merit classification as medicines or medicaments. These are not having any therapeutic or prophylactic value. K-Link Puyikang/Puyikang Takara is basically for ladies hygiene. There is no curative or therapeutic value for these products. At the best, some of these products have effect of removing toxins, overall enhancing the well-being of the person consuming or using them. The appellant-assessee themselves clearly printed in the literature as well as on the product package that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence to support the claim of the Revenue that the appellant-assessee deliberately mis-declared the description of the imported goods in order to evade payment of duty. It was recorded that the product literature was made available to the department. The goods were also examined before assessment and permission granted after due assessment. We are in agreement that the original authority on the issue of limitation. The claim of the appellant assessee for a particular classification by itself will not make the case for mis-declaration, when all the required details including the product literature and the imported product itself being available at the time of assessment. There can be no question of demand for extended period invoking fraudulent mis-statement etc. in such situation. There is no additional evidence unearthed which was not available at the time of assessment and clearance of goods. Accordingly, we find no merit in the appeals filed by the Revenue and the same are dismissed. 12. In view of the above discussions and analysis, the appeal filed by the appellant-assessee as well as all the Revenue s appeals are dismissed. COs filed by assessee in Revenue s appeals stan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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