TMI Blog2018 (9) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... rom M/s Beacon Diagnostics (P) Ltd., GIDC., Kabilpore, Navsari (Distt Valsad) in bulk pack under the cover of Central Excise invoices falling under chapter Ch.Sh.No. 3002.00. It was noticed that on receipt of SALMONELLA ANTIGENS , its sample is tested for approval and RDA report is maintained for the same. The appellant affixed the label/ wrapper IMMUNO PACK Widal 2+2*5 ml and 4*5 ml SALMONELLA ANTIGENS set on each vial/bottle and then packed along with glass for rapid slide and tube test. On Carton / Box appellant was mentioning that NOT FOR MEDICINAL USE FOR IN VITRO USE ONLY . The appellant were maintain batch register for the same, they have neither declared such product to the department and nor they have paid Central Excise duty on the said goods. Accordingly, the SCN was issued and the demand was confirmed, classifying the goods under chapter heading 3822.00. After aggrieved by the Order in Original, appellant filed appeal before Ld. Commissioner (Appeals) who by passing a detailed order upheld the Order in Original and rejected the appeal filed by the appellant therefore, the present appeal. 2. None appeared on behalf of the appellant, further written submission was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decision of the Tribunal in the case of Nestle India Limited - 2004 (170) E.L.T. 474 , C.C.E. v. Kamani Foods - 1999 (114) E.L.T. 644 and Zeneca ICI Agro Chemicals Limited v. C.C.E. - 2009 (238) E.L.T. 770. It is his submission that all these decided case laws clearly indicate that the product s name should be considered at the time when it was cleared and in the case in hand, he submits that purchase water in bulk, received invoices in the name of Pure Water and after repacking the same in 5 Litres and 20 Litres, the label affixed is also Pure Water . It is his submission that words Pure Water , by any stretch of imagination cannot be considered as brand name. He would submit that, the very same was considered in the Kamani Food wherein, it is dearly held that Pure Water is classifiable under Chapter 22.01.90. 5. As regards the classification of WIDAL-SALMONELLA ANIGENS SET , it is his submission that the said issue is also now well-settled by the Hon ble Supreme Court in the case of Span Diagnostics Limited - 2007 (211) E.L.T. 521 . He takes us through the entire case law and submits that the Hon ble Supreme Court has specifically, in paragraph 21, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct sold by them has been described as DM Water, i.e. De-mineralized Water, whereas the product sold by the appellants is in the name and style of Pure Water . As per the appellant s own submission, the product is used by doctors, laboratories and pharmaceutical industry and thus the product has a distinct market. To identify its product in the market, I find that the appellants have invented the word Pure Water and accordingly marketed the product. The use of the label Pure Water is nothing but the use of a brand name and therefore, it meets with the definition of Brand Name as given in Chapter note 3 of Chapter 22 of the CETA, schedule. In view of above, I find that the Pure Water in 5 litre retail pack is a product distinct from the De-mineralised Water in bulk procured by the appellants and the process of conversion of de-mineralised in bulk to the product Pure Water in 5 litre retail packs amounts to the manufacture of a new product, viz. Pure Water (branded) falling under sub-heading 2201.19 of the CETA schedule. Therefore, I hold that the order of the adjudicating authority classifying the product Pure Water under sub-heading 2201.19, attracting excise duty @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as hot beverage or a cold beverage depending upon one s liking and taste, it does not make any difference in deciding whether it is a tea falling within the definition of Section 3(n) of the Act. In our view, the manner of preparation of tea and the process of manufacture of instant tea powder cannot take away instant tea out of definition of tea under the Act. Ultimately instant tea is produced from the leaves of the plant Camellia Sinensis (L) O. Kuntze. In these circumstances, the instant tea is covered by the definition of tea within the meaning of Section 3(n). Once instant tea falls within the definition of Section 3(n), a cess can be levied on it under Section 25 of the Act. In our view, the Commissioner (Appeals) was right in upholding the order of the Assistant Commissioner but the Tribunal went wrong in holding that instant tea is different from tea and it fell outside the scope of Section 3(n) of the Act referring to Prevention of Food Adulteration Rules, 1955 and the Tea Waste (Control) Order, 1959. When the Act defined tea specifically, the Tribunal ought not to have strained itself by referring to other enactments to construe instant tea as the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening test for potential carriers of the disease is not itself a micro organism. So WIDAL-SALMONELLA ANIGENS SET , is to be composite product falling in the category of prepared diagnostic or laboratory reagents. In this regard the argument of the appellants that the product falls under Heading 3002.00 of the CETA schedule is not correct as the said heading covers antisera and other blood factions, vaccines, toxins and cultures of micro organisms and similar products, which can be regarded as pharmaceutical products and medicaments whereas the product under consideration is clearly not for medicinal use and is a composite blood chemistry reagent kit. Further, the activity undertaken by the appellants - of putting four different varieties of Salmonella Antigens procured in bulk packs into four separate ampoules of 4 ml each and putting the same in a box/carton for sale as a composite WIDAL-SALMONELLA ANIGENS SET of 4 or 2 Antigens - is nothing but labelling/relabeling of container and repacking from bulk pack to retail pack or adopting of any other treatment to render the product marketable to the consumers and thus amounts to manufacture in terms of clause (ii) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the patient/person is infected with typhoid or not. We also find that the HSN explanatory notes under Chapter 38.22 clearly exclude those, which are falling under Chapter Heading 30.02 or 30.06. It has been amply demonstrated before us by the learned counsel that the WIDAL-SALMONELLA ANIGENS KIT is nothing but antisera and other blood fractions. We find that the Apex Court in the case of Span Diagnostics had an occasion to look into the rival entries of 30.02 and 38.22 for classification of such antisera and other blood fractions. We may respectfully reproduce the ratio of their Lordships, which is found in Paras 21 and 22 :- 21. As stated above, Chapter Heading 30.02 refers to antisera and other blood fractions. According to the Explanatory Note in HSN (Seventh Edition), antisera is obtained from the blood of humans or animals which are immune against diseases. Antisera is used for diagnostic purposes, including in-vitro tests. There is nothing like crude antisera and refined antisera. In the present case, even according to the Department, PTK is an antisera, however, according to the Department, PTK is a refined antisera. As stated, antisera falls under Chapter Heading 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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