TMI Blog2023 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that when the goods are cleared in sets consisting of two or more separate constituents in that case if the product is included to be mixed whether to obtain a product of Section VI or Section VII are to be classified in the heading prior to that product. In the present case, after mixing of the vaccine powder with sterile water, it is clearly intended to be administered as vaccine therefore, entire combi pack shall be correctly classified under the Central Excise Tariff Heading No. 3002 which is meant for vaccine. The condition from (a) to (c) given in Note 3, is clearly satisfied in as much as all the constituents of combi pack are used altogether at the time of administering the vaccine to the human body. Being combi pack it is presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28.12.2010 and allowing the appeal filed by the revenue on the ground that sterile water for injection was captively consumed and hence ineligible for exemption in terms of notification no. 67/95-CE dated 16.03.1995 as amended by notification no. 16/2003-CE dated 01.03.2003. 02. The brief facts of the case are that since the appellant is engaged in the manufacture of Rabipur vaccines , an anti-rabies vaccines falling under chapter heading no. 3002 of First Schedule to the Central Excise Tariff Act, 1985 attracting nil rate of duty. The said vaccine is sold in the domestic market in a combi pack and also exported out of India. The contents of the combi pack are as follows:- A) 1 vial of rabies virus strain in lyophilized powder for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed against the said Order-In-Original on the ground that Sterile water for Injection captively consumed and hence ineligible for exemption in terms of Notification No. 67/95-CE dated 16.03.1995 as amended by notification no. 16/2003-CE dated 01.03.2003. In the first appeal proceedings, the Commissioner (Appeals) vide Order-In-Appeal dated 30.04.2012 allowed the appeal filed by the respondent. Being aggrieved by the said Order-in-Appeal dated 30.04.2012, the appellant preferred an appeal before the CESTAT, the CESTAT vide its order No. A/1727/WZB/AHD/2012 and Order No. S/2585/WZB/AHD/2012 dated 06.12.2012 remanded the case back to the Commissioner (Appeals) to decide the issues afresh on merit based on the evidence adduced by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, he placed reliance on the following judgments:- CCE, Bhubaneswar-I Vs. Champdany Industries Ltd.- 2009 (241) ELT 481 (SC) CCE Vs. Gas Authority of India- 2008 (232) ELT 7 (SC) CCE Vs. Sunita Textiles Ltd.- 1993 (67) ELT 932 (Tribunal) 3.1 He further submits that even as regard the charge made in the show cause notice, it is settled that in the nature of the product in question the entire combi pack is treated as vaccine and correctly classifiable under Chapter 3002. In this regard, he placed reliance on the judgment in the case of VENTRI BIOLOGICALS Vs. COMMISSIONER OF CENTRAL EXCISE, PUNE- 2000 (115) ELT 464 (Tri.) which was upheld by the Hon ble Supreme Court. He further submits that the above decision was also rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injection. C) 1 Sterile disposal syringe and needle. The Rabipur vaccine is administered as follows:- a) The vial containing the Rabies virus strain in a lyophilized powder is reconstituted with Sterile Water for Injection (SWFI). b) This reconstituted mixture is then administered by way of injection using the disposal syringe and needle. From the above, it is clear that the vaccine cannot be administered without sterile water therefore the sterile water is also considered to be the vaccine which attracts only the nil rate of duty under CETH 3002. In this regard, it is necessary to go through the section notes of Section VI of Central Excise Tariff Act, 1985. The relevant note 3 is reproduced below:- 3. Goods put up in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndoubtedly complementary to each other. 5.1 In view of the above Note 3 of Section VI there is absolutely no doubt that the sterile water cleared in a combi pack with vaccine and syringe will also fall under CETH 3002 which is a vaccine. When this be so, then the entire combi pack attracts nil rate of duty under CETH 3002. On this basis, the demand is not sustainable. 5.2 Without prejudice to our above findings, as regard the appellant s submission that the review as well as the Commissioner (Appeals) order is beyond the scope of show cause notice. We find that it is apparent from the show cause notice that the proposal is to demand duty on sterile water, considering the clearances of the same is finished goods for human consumption. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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