TMI Blog2019 (5) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... d and hence not having any bearings on the current proceedings. Impugned order upheld - appeal dismissed - decided against appellant. - Excise Appeal No. 51976 of 2018-DB - Final Order No. 50595/2019 - Dated:- 30-4-2019 - Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri Santosh Khandelwal, Advocate - for the appellant Shri S.K. Bansal, DR - for the respondent ORDER Per Bijay Kumar : The present appeal is filed against the order-in-original dated 28.2.2018 passed by the Commissioner. 2. The brief facts of the case are that the appellant is registered with the Central Excise department and are engaged in the manufacture of pharmaceutical products and Nutritional Supplement/proprietary food under the brand name Beneficiale Liquid and DSN Capsule . The appellant is clearing their final product at nil rate of duty by availing the benefit of exemption under Notification No. 49/2003-CE dated 10.6.2003, which exempted the clearance of goods from the notified area in the state of Uttarakhand. 3. Acting on the intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Hon ble Supreme Court in the case of Commissioner of Central Excise Vs. Wockhardt Life Sciences Ltd. 2012 (277) ELT 299 (SC) and Commissioner of Central Excise, Mumbai-IV Vs. Ciens Laboratories, Mumbai - 2013 (295) ELT 3 (SC). These judgement indicated that a product which has curative properties are considered to be of prophylactic values. It is further submitted that the products are being prescribed for the treatment of ailments by the doctors, which for the treatment immune system, loss of memory and malfunction of organs. These products contained vitamins, minerals and amino acids. It is also submitted that these products are considered as medicine in the medical profession and hence as per common parlance test should applied and be classified in the Chapter Heading 3004/2106 of Central Excise Tariff. Reliance was placed on the Apex Court s decision in the case of G.S. Auto International Ltd. Vs. Collector of Central Excise, Chandigarh 2003 (152) ELT 3 (SC) and Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner of Central Excise, Nagpur - 2006 (196) ELT 3 (SC) to that effect. 4.1 It is also submitted that the various decisions which was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 6.12 and 6.13 (a)Not-mention of warning message is not determinative for classification of the products. Most of over the counter drugs do not have any such warning on packaging. (b)The mention of nutritional supplement is marketing practice followed by the appellant. The marketing and advertisement of product is not criteria for classification. (c)The product is used during recovery stage of any treatment. In addition to this, none of the medicine package contains the usage of medicine to prevent from being sold without prescriptions by chemists. The detailed legal submission has been made on para 5 below. 5. Product is nutritional supplement as appellant have been manufactured it under FSSAI license Para 6.12 and 6.16 License is not relevant to determine the classification. Kindly refer to para 7 for submission on this finding. 6. Relied on the test report of CRCL Para 6.15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o CRCL who in its report has categorically stated that the product is other than medicament. The Revenue, therefore, concluded that the goods are classifiable under heading 2106, which is not included in Notification No. 49/2003. Therefore, the appellant is not entitled for this benefit of the notification No. 49/2003. 6. We have heard the parties and perused the case record. The issue is to be decided in this appeal is regarding classification of the product namely DSN and beneficial as to whether under Chapter 3004 and 2106. The department has drawn the sample and sent for the test to the CRCL, which is authorised Government body, for test of the product, in question. It has been opined by the CRCL as under : Test Memo No. 02/2016 Report:- On opening the sample packet two samples were found. Out of these are sample is packed in glass bottle kept inside paper cartoon (unit packing) described as beneficial R Liquid and registered here as CL-159 (DGCEI)/15.09.16 and second sample is packed in caps kept inside blister strip packing (2 Nos.) bearing described as DSN capsules register here CL-160 (DGCEI)/15.09.16. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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