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TMI Blog2018 (1) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... will be as claimed by the respondent under Heading 30039011. Aggrieved by this, the Revenue is in appeal. 2. The learned AR elaborating the grounds of appeal submitted that the very same products now in dispute were examined for classification by the Tribunal, Chennai in the case of DXN Manufacturing (India) Pvt. Ltd. The Tribunal held that the product should be classified as miscellaneous food supplement under heading 2108 of the Central Excise Tariff, as it was existing during the relevant time. The assessee took the matter to the Hon'ble Supreme Court. The Apex court vide order dated 07/08/2015 in CA No. 1215 of 2006 directed the Tribunal to examine the matter afresh. A direction was given for fresh examination after considering all the evidences that are to be submitted by the assessee. Thereafter, the Tribunal again decided the matter issuing a final order No. 42811-42821 of 2017 dated 08/11/2017. All the evidences and submissions made by both the sides have been examined in detail and it was concluded that the products, which are identical to the one now in dispute in Delhi, were to be classifiable under CETH 2108.99. This is a miscellaneous heading under edible preparation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the market as Ayurvedic medicaments and as such the impugned order is correct in classification as Ayurvedic Medicaments. He also submitted that case laws relied upon by the Tribunal, Chennai did not fully support the case of the Revenue. In fact, the principle that the product as identified in the market should form basis for classification is not fully appreciated by the Revenue. 4. The learned Counsel further submitted that they have the product certified as drug after due clinical trial. The learned Counsel for the respondent pleaded that the ratio of the order of Chennai Tribunal should not be applied to them. 5. We have heard both the sides and perused the appeal record. The first point both the sides agree, the products under examination before us are the same as before the Tribunal, Chennai. As per direction of Hon'ble Apex Court such detailed order has been issued on 08/11/2017. Now the only serious contention of the respondent is that the ratio of the decision by the Tribunal, Chennai will have no application to the present case. Towards this end, the learned Counsel for the respondent submitted various points narrated above. We have carefully considered the appeal rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke. The dosage is mentioned as one capsule three times daily. The label however does not indicate that it would cure any particular disease. The label also does not indicate that the capsule is to be taken for any particular symptom. Label on a product is the basis which has to satisfy the first test of common parlance, since, it is the label which conveys to the customer the disease that can be cured using the medicament. Merely by mentioning it as APM or by stating that the product contains some quantities of Chatrakh & Shiitake the appellant cannot contend that it is a medicament. The only inference that can be drawn from the indications in the label is that the product is only meant for general well being. As stated earlier, it is also a fact that the products were originally sold as food supplements. Though the Learned Sr. Counsel Sh. Lakshmi Kumaran took assistance of various literature, reports of clinical studies and other documents, which we have analyzed herein above, to canvass the argument that these products cure many an ailment and has therapeutic properties, however on the labels there is nothing to indicate that they cure any specific disease. Even the pamphlets acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contains more than 200 active elements divided into three categories consisting 30% water soluble elements, 65% organic soluble elements and 5% volatile elements. The contents were indicated as Polysaccharides, Organic germanium, Adenosine, Triterpenoids, Ganoderic Essence, Protein, Fibre. Nowhere in these pamphlets was a claim made that they were ayurvedic medicines, or for that matter that they had any ayurvedic preparations. The pamphlets also do not make any claim that the items are Ayurvedic preparations. On the other hand, it was only claimed that in respect of RG the contents were Ganoderma Lucidum harvested exactly the 100th day of growth and in case of GL that the product was Myceilum of Ganoderma Lucidum harvested after 21 days of growth. Scanned copies of these relevant pamphlets are reproduced below : This space is purposely put blank. 12.1 No doubt, the appellants have claimed that the ingredients in respect of RG are Ganoderma (Chatrakh) and Shiitake (Bhuchatra) and in respect of GL also, ingredient Shiitake (Bhuchatra) has been shown and another ingredient Ganomycelium has also been indicated as Chatrakh. To counter this, Revenue have obtained a statement from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally to another statute. As stated above, the object of Excise Act is to raise revenue for which various products are differently classified in New Tariff Act." Based on the discussions herein above, we are therefore of the considered opinion that the impugned goods in question cannot be claimed to be Ayurvedic Proprietary Medicines for the purpose of classification in the Central Excise Tariff Act" 6. We have given close consideration to the submissions of the learned Counsel for the respondent for a distinction to be made from the ratio of the above decision of the Tribunal, Chennai. We note that the whole thrust is on the recognition of the product by the Drug Control Authorities. This aspect has been dealt with by the Tribunal, Chennai. It was categorically recorded that a drug licence by itself cannot be the basis for classification. The second important aspect emphasised by the learned Counsel for the respondent is that the product ingredient has been recognised and listed in the authoritative granth by Ayurvedic. This aspect also has been examined by the Tribunal, Chennai. We note that the product is based on specific species of mushroom. The text relied by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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