TaxTMI 
TaxTMI 
2001 (4) TMI 607
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....idered the submissions and find - (a) The Collector has held - (i) Though the classification lists were approved, the ingredients of the products were withheld, therefore, the proviso to Section 11A was rightly invoked. (ii) Products have a predominant mixture of vitamin and chapter 23.02 covers only products which can be traced to animal or vegetable origin and not synthetic preparations. (iii) Classification made on the basis of active ingredients which are VITAMINS as per Rule 3 the last heading will have to be applied and the products would be classified under heading 29.36 of the Central Excise Tariff Act, 1985. (iv) The case of M/s. Glaxo India Ltd., & Tribunal decision thereon was being contested by the department and the findings on M/s. Ranbaxy's case will be applicable. (b) The following facts have been admitted as seen in para 3 of the order. (i) Technical Affidavits from experts and users have been placed on record. (ii) Classification Lists approved since 1992, but the same was contested by the department from ....
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.... 1. Show cause notices issued for the period July 1994 to June 1995 2. Asst. Commissioner passes order 7/96 03-01-1996 3. Commissioner Appeals allows appeal vide order 77/97 from the above, it is apparent that the product Ostocalcium Vet was tested and the Assistant Collector before approving the list had made all enquiries and satisfied himself. A perusal of the show cause notice, does not reveal any evidence or material relied, that the explanations offered were incorrect misleading or suppressed. Relying on the case of Supreme Court in the case of ESEI Industry & Chemical - 1996 (82) E.L.T. 444, and Muzzaffarnagar Steel [1989 (44) E.L.T. 552 (T)] we would hold that there exist no ground to invoke the proviso to Section 11A(1) as regards the demands on Ostocalcium Vet (ii) The demand determined is for the period 6/92 to 7/94 vide notice, dated 20-5-1997; there is no period of demand with six months. The notice alleges - Para 3 - "whereas it also appears that the composition of the various ingredients present in these products has been withheld from the department deliberately, with the malafide intention of getting the produc....
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....rs that the Vimeral liquid is only a mixture of vitamins and contains nothing other than vitamins. Therefore, the same appears to be classifiable under Chapter sub-heading 2936 of the Central Excise Tariff Act, 1985 as intermixture vitamins and not as AFS under 2302 of the Central Excise Tariff Rules, 1985. (2) Vitablend WM Forte : The sampling Advice Sheet dated 22-9-1994 shows quantity of 2000 kg. to have been tested. The chemical assay is as follows :- "Vitamin A potency : 1,13,016 IU" It, therefore appears that the said Vitablend WM Forte, being composed of only Vitamin A would merit classification under Chapter sub-heading 2936.00 of the Tariff Act as a Pro-vitamin and not as AFS under heading 2302. 3. Ostocalcium Vet : The sampling Advice sheet dated 1-8-1994 shows the following to be contained in 5000 ltrs. of Ostocalcium Vet :- Calcuim : 330 mg. Phosphorus : 171 mg. Vitamin D3 : 1942 IU Vitamin B12 : 22.33 mcg. 3. As can be seen, the quantity of calcium and phosphorus contained in the said Ostocalcium Vet is very minute, and the same contains Vitamin D3 predominantly, along with a small quantity of Vita....
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....rtue of which the correct classification of the same could not be determined. Thereby, it appears that M/s. Kemwell (P) Ltd., have deliberately suppressed this information from the department with the malafide intention of getting their products classified under Chapter sub-heading 2302.00 of the Schedule to the Central Excise Tariff Act, 1985, as AFS attracting nil rate of duty. 7. From the above, it appears that the said M/s. Kemwell (P) Ltd. have contravened the provisions of Rules 9, 49, 173F, 173G and further committed the offences specified under Rules 173Q(1)(a) and 173Q(1)(d) ibid. The duty payable on this account works out to Rs. 2,22,84,805/- for the period from 6/92 to 7/94. M/s. Kemwell (P) Ltd., appear to be liable to an equivalent penalty under Section 11AC of the Act and also under Rule 173Q of the Central Excise Rules, 1944." A careful perusal of the same does not reveal how there was a deliberate intention of getting the products classified as Animal feed supplements. The chart prepared in the appeal book extracted above, indicates that the Assistant Collector's Range Officer had sought details vide letter dated 8-3-1993, which were replied vide letter d....