TaxTMI 
TaxTMI 
TaxTMI 
2013 (9) TMI 166
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....nd order and in the impugned order, the Commissioner confirmed the classification of the product under CETH 291800 but held that extended period is invokable and confirmed the demand and imposed penalty also. When the appeal was considered last time which resulted in the order of this Tribunal No. A/1210-1212/WZB/AHD-2009 dated 22-6-2009 [2009 (244) E.L.T. 157 (Tri. - Ahmd.)], the Tribunal upheld the classification proposed by the Revenue but held that extended period is not invokable and no penalty was imposable. The appellants filed a tax appeal against this order and Hon'ble High Court of Gujarat has remanded the matter to this Tribunal to consider the matter afresh on the ground that the Tribunal had not given specific findings on the various submissions made and the judgments relied upon and the distinguishing features pointed out by the appellant without expressing any opinion on the classification of the product in question [2010 (257) E.L.T. 523 (Guj.) = 2011 (21) S.T.R. 329 (Guj.)]. 2. Accordingly, we heard both sides. 3. The ld. Advocate Shri Devan Parikh on behalf of the appellants submitted the following points :- (i) The Commissioner could not have invok....
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.... E.L.T. 404 (Tri.)], the ld. Advocate submitted that in terms of this decision, if it is a product of two or more constituents, it is not necessary for it to put up in dosages for classification under CETH 3003.03. He also relied upon the Circular No. 13/89 dated 21-2-1989 and submits that this circular clarifies that if a product constituted by two or more elements put together for therapeutic or prophylactic uses, it has to be treated as medicament and classified under Chapter 30. Further he submits that the product is manufactured only under a drug license and entire production is sold to persons who make pharmaceutical formulations or who convert the products into tablets or injections. The product is of IP grade. Appellants also filed Form-II as required for Non-scheduled Bulk Drugs under Drugs (Price Control) Order. He fairly admitted that in a very small number of cases, the product was used by persons making cattle feed but this was also for medicinal purposes. While fairly admitting that it is packed for industrial purposes, he submitted that it is consistently put to pharmaceutical use. There is no adverse finding to the submission that the product is made from two consti....
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.....C.) and Dabur (India) Ltd. v. CCE, Jamshedpur reported in 2005 (182) E.L.T. 290 (S.C.). Thus from common parlance test also Calcium Gluconate is classifiable under CETH 2918.00 only. Further, in the new Central Excise Tariff introduced with effect from 28-2-2005, Calcium Gluconate appears under sub-heading 2918.1610. 5. We have considered the rival submissions. 5.1 As regards the invocation of extended period and imposition of penalty, we agree with the submission that the Commissioner has gone beyond the remand order and appellants could not have been visited with the demand for extended period and penalty when the Department had not even appealed against the Order-in-Original limiting the demand to the period of limitation and not imposing any penalty. Therefore, we set aside the penalty imposed on the appellants and also the demand for extended period. 5.2 Before, we proceed to consider classification of Calcium Gluconate, it would be appropriate to reproduce the relevant tariff headings as they existed during the relevant time :- 29.18 2918.00 Carboxylic acids with additional oxygen function and their anhydrides, halides, peroxides and peroxyacids; their halogenated, sulp....
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....id and its salts : Gluconic acid is normally presented as an aqueous solution. Its calcium salt is used e.g. in medicine, for cleaning and as a concrete additive". The fact that product Calcium Gluconate is to be classified under CETH 29.18 even earlier is confirmed by the fact that after the introduction of 8 digit tariff, Calcium Gluconate figures under 291816 Gluconic acids, its salts, esters and is classifiable under 29181610. This leads us to the obvious conclusion that Calcium Gluconate is specifically covered under Chapter 29 of Central Excise Tariff and is classifiable under CETH 2918. In Interpretative Rules, Rule 1 provides that the classification shall be determined according to the terms of the headings and in terms of relevant section or chapter note and only where headings or notes do not otherwise require according to the provisions of other rules. In this case, the chapter note of 29 clearly provides that separate chemically defined organic chemicals are to be classified under CETH 29. Further the tariff heading 2918 when read with HSN and also the subsequent elaboration when introducing 8 digit tariff clearly shows that Calcium Gluconate comes under CETH 2918 only.....
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....30 could be considered for classification under Chapter 30 at all. Further Chapter Note 2 of Chapter 25 provides that it covers only products which have been washed, crushed, ground, powdered, levigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes etc. The Tribunal came to the conclusion that the products in that case were covered by Chapter 25 since the appellants in that case had not put forth any evidence to show that the product is not covered by Chapter 25 when considered in terms of the heading under chapter note which was reproduced in para 5 of the order of the Tribunal. We do not agree with the contention of the ld. Counsel that this judgment lays down one and two ingredient tests for classification of medicaments since that was not the issue before the Tribunal at all. Thus, we find that none of the decisions cited by the ld. Counsel are applicable to the present case. 5.6 As regards the Circular No. 13/89, the ld. Counsel relied upon the sentence "However, Chapter notes of Chapter 30 of the CET do not exclude from the scope of Chapter 30 the goods classifiable under Chapter 29. But Chapter notes 2(i)(a) an....
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....that they were not manufacturing the product according to the specifications and standards laid down in the Pharmacopeia of India. All the officers whose statements were recorded who were experienced and qualified, voluntarily concluded that their product is not a medicament, medicine, formulation and whatever they were manufacturing was for industrial use. Further, the statements of actual users/traders whose statements were recorded also stated that they used to receive Calcium Gluconate in 25 kgs. bags and the product is not a medicament but a chemical compound or raw material for manufacturing of medicines and as admitted by the ld. Counsel himself, a small quantity was used for manufacture of cattle feed also. When the appellants are not manufacturing the product according to standards laid down and the appellants themselves mentioned the product is for industrial use and not for therapeutic or prophylactic use, when the product is specifically covered under Chapter 29 as a separate chemically defined compound, we do not understand how only for the purpose of collection of excise duty, the product is to be classified under Chapter 30. The reliance on the decision of the Hon'bl....