TaxTMI 
TaxTMI 
2010 (2) TMI 662
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....out even considering whether the product in question falls under Chapter Note 2(i)(a) or Chapter Note 2(i)(b)? (iii) Whether the Hon'ble Tribunal clearly committed an error of law in relying upon an earlier ex parte order passed in the case of products falling under Chapter Note 2(i)(b), when the present case clearly is a product falling under Chapter Note 2(i)(a)? (iv) Whether the Hon'ble Tribunal clearly committed an error of law in classifying the product under Chapter Heading 2918.00 as organic chemical instead of Chapter Heading 3003.30? (v) Whether the Hon'ble Tribunal erred in law in proceeding beyond the SCN, inasmuch as, the only charge in the SCN was that the product in question is required to be converted into injection or tablet before classifying the same as 'medicament'? (vi) Whether the Hon'ble Tribunal erred in law that once the extended period is dropped/not attracted then shorter period demand cannot subsist? (vii) Whether the Hon'ble Tribunal erred in holding that when classification under different chapter heads possible favourable one to assessee be adopted?" 2. This Court ....
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....ssification of the product as canvassed by the Revenue. Being further aggrieved by the said order the appellant preferred an Appeal to the Tribunal. It is the case of the appellant that detailed submissions were made to the Tribunal and detailed outline of argument was also filed before the Tribunal. Without considering this submission which go to the very root of the matter, the Tribunal passed an order after four months on 22-6-2009 [2009 (244) E.L.T. 157 (Tri.-Ahmd.)] and dismissed the Appeal filed by the appellant. It is this order which is under challenge in the present Tax Appeal. 7. Mr. Devang Parikh, learned advocate appearing for the appellant has submitted that the impugned order is ex-facie non-reasoned and non-speaking order. It fails to deal with the submissions raised before the Tribunal in their true perspective. There is settled legal position by now that a non-speaking or non-reasoned order cannot be sustained under any circumstances. He has further submitted that issue with regard to the classification of product as a medicament or in its base category as an organic chemical is answered by the provisions of the Central Excise Tariff Act itself. There are lot of....
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....'. Thus, the need for the product to be directly administrable to a patient is necessary only in the case of unmixed product and certainly not in the case of a product which consists of two constituents which are put together for therapeutic or prophylactic uses. He has, therefore, submitted that the Tribunal has failed to appreciate this clear language of the chapter note. The Tribunal has further failed to appreciate that even the show cause notice itself admits that the product has therapeutic and prophylactic uses. The only case made in the show cause notice was that, Calcium Gluconate is yet to be converted into injection or tablet and unless it is in tablet or injection form irrespective of any change in composition or content of the product, it cannot be classified as a 'medicament'. He has submitted that this very perception is ex-facie opposed to the definition of 'medicament' as contained in the chapter note No. 2 of Chapter 30. Mr. Parikh relies on the decision of the Apex Court in the case of State of Haryana v. Dalmia Dadri Cement Ltd. reported in 2004 (178) E.L.T. 13 (S.C.) wherein it is held that the words "for use" must be read as "intended for use" and not "actuall....
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....n in 1997, even prior to the Tribunal's own decision in that case. In any case, all these aspects which go to the very root of the matter and hence the sole reliance on the decision of Shanpur Industries (supra) is wholly unjustified. He has, therefore, submitted that the substantial questions of law do arise out of the order of the Tribunal and since the notice is issued by this Court calling upon the department to make its stand clear, appropriate order may be passed either accepting the Appeal in toto or at the most remanding the matter back to the Tribunal to decide the Appeal afresh in light of the submissions made by the appellant. 10. Mr. Y.N. Ravani, learned Standing Counsel appearing for the Revenue, at the outset raised a preliminary issue and submitted that this Appeal itself is not maintainable. When the issue regarding classification is involved Appeal lies to the Apex Court and not to this Court. He has, therefore, submitted that this Appeal should be dismissed only on this short ground. Even with regard to other submissions made on behalf of the appellant, Mr. Y.N. Ravani has submitted that there is no substance in the arguments canvassed by Mr. Parikh that t....
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....only. In that case also the decision was rendered considering that the product was covered by the very Chapter notes. Further, the Manager of the very same Shanpur Industries, has stated that they were classifying the product under CETH 2918.00 only. The Tribunal has also referred the other decisions and observed that those decisions are distinguishable on facts. Mr. Ravani has, therefore, submitted that there is no infirmity in the order passed by the Tribunal and the Appeal deserves to be dismissed. 12. We have considered the rival submissions made by the learned advocates appearing for the parties. We have also gone through the impugned order of the Tribunal as well as all other documents produced before the Court. Dealing with the preliminary objection raised by Mr. Ravani against the maintainability of this Appeal, we are of the view that this objection would have held good if we would have decided the issue regarding the classification in the present Tax Appeal. However, the bare perusal of the questions framed by the appellant would clearly indicate that the main grievance of the appellant is about the non-speaking and non-reasoned order passed by the Tribunal. The a....