2007 (4) TMI 617 - SC - Central Excise

Classification of Monoclonal Antibodies and Pregnancy Test Kits under Customs Tariff

The court classified Monoclonal Antibodies (MABs) under Chapter Heading 30.02 as 'cultures of micro-organisms' rather than under Chapter Heading 30.05 as ... Whether Beta Visipreg, Visipreg Strip, Pregnancy Test Card fall as “antisera” under Chapter Heading 30.02 of CETA (according to the assessee) or whether it falls under Chapter Heading 38.22 of CETA as “diagnostic or laboratory reagent” (as contended by the Department)? Held that:- “Blood fractions” fall under Chapter Heading 30.02. Chapter Heading 30.02 refers to “blood fractions”. Merely because the medium used is latex (rubber) or paper, will not bring the items under Chapter Heading 38.22. Once an item is a “Blood Fraction” it falls under Chapter Heading 30.02. The medium is irrelevant. The medium could be paper or rubber. The configuration of the product and the function are important. In our opinion, Item Nos. 1 to 15 are “Blood Fractions”. They are “Blood Fractions” even according to the Department. In the circumstances, we classify Item Nos. 1 to 15 of Annexure B to the paper book under Chapter Heading 30.02 (CSH 3002.00). Issues Involved:1. Classification of Monoclonal Antibodies (MABs).2. Classification of Pregnancy Test Kits (PTKs).3. Classification of diagnostic reagents and other products.Detailed Analysis:1. Classification of Monoclonal Antibodies (MABs):Issue:The primary issue was whether Monoclonal Antibodies (MABs) should be classified under Chapter Heading 30.02 as 'cultures of micro-organisms' or under Chapter Heading 30.05 as 'pharmaceutical products, not elsewhere specified or included' according to the Central Excise Tariff Act (CETA).Judgment:The court found merit in the arguments advanced by the assessee. It was concluded that MABs are indeed 'cultures of micro-organisms' and should be classified under Chapter Heading 30.02. The court stated, 'MAB is not a sera of human or animal origin, it is not a vegetable extract, it is not a plant extract and on the other hand it is obtained by hybridoma technology (cellular fusion). Therefore, it cannot fall under Chapter Heading 30.05 of CETA.' The court emphasized that the width of Chapter Heading 30.05 is restricted to products mentioned in Note 3(e) to Chapter 30, and MABs fall specifically under Chapter Heading 30.02.Conclusion:The civil appeal filed by the assessee (C.A. No. 5322 of 2002) was answered in favor of the assessee, classifying the six items under Chapter Heading 30.02 of CETA.2. Classification of Pregnancy Test Kits (PTKs):Issue:The issue was whether Beta Visipreg, Visipreg Strip, and Pregnancy Test Card should be classified as 'antisera' under Chapter Heading 30.02 of CETA or as 'diagnostic or laboratory reagents' under Chapter Heading 38.22 of CETA.Judgment:The court noted that antisera is used for diagnostic purposes, including in-vitro tests, and there is no distinction between crude and refined antisera. The court stated, 'antisera falls under Chapter Heading 30.02. In the circumstances, 'antisera' is covered by Chapter Heading 30.02 and since it is covered by that Heading, Chapter Heading 38.22 will not apply.' Therefore, the products in question were classified under Chapter Heading 30.02.Conclusion:The civil appeals filed by the Department (C.A. Nos. 1953-54 of 2003) were answered in favor of the assessee.3. Classification of Diagnostic Reagents and Other Products:Issue:The issue involved the classification of various diagnostic reagents and other products, specifically whether they should fall under Chapter Heading 30.02 or Chapter Heading 38.22 of CETA.Judgment:For Item Nos. 21 to 32, the court held that these items are identical to the ones discussed in C.A. No. 5322 of 2002 and should fall under Chapter Heading 30.02. Regarding Item Nos. 35, 36, and 37, the court remitted the matter to the Adjudicating Authority to determine whether these items are diagnostic reagents or diagnostic aids. For Item Nos. 1 to 15, the court concluded that these items are 'Blood Fractions' and should be classified under Chapter Heading 30.02, stating, 'Once an item is a 'Blood Fraction' it falls under Chapter Heading 30.02. The medium is irrelevant.'Conclusion:The assessee (M/s. Span Diagnostics Ltd.) succeeded in C.A. Nos. 1076-1080 of 2002 for Item Nos. 1 to 15 and Item Nos. 21 to 32, which were classified under Chapter Heading 30.02. The matter regarding Item Nos. 35, 36, and 37 was remitted for fresh decision.Final Disposition:The civil appeals (C.A. No. 5322 of 2002, C.A. Nos. 1953-54 of 2003, and C.A. Nos. 1076-1080 of 2002) were disposed of with no order as to costs.