TaxTMI 
TaxTMI 
2006 (6) TMI 67
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....o arrested and copy of arrest memo was served, which is Annexure No.1 to the affidavit. The applicant moved application for bail before the Sessions Judge, Meerut which was rejected on 15.5.2006. 3. The present bail application has been moved on the ground that applicant runs a factory for preparing the ayurvedic medicines. A licence has been issued in favour of T.V.C. Sky Shop Limited for manufacturing of Ayurvedic medicines through Surya Herbal Limited by the Director of Ayurvedic and Unani Services, U.P. Lucknow. Accordingly these herbal medicines were being manufactured for T.V.C. Sky Shop Ltd. As per the licence certain items have been approved by the Ayurvedic and Unani Director to be manufactured by the applicant including the above two. The photo copy of the licence is Annexure No.3. The T.V.C. Sky Shop Limited works on television net work and it entered into agreement with applicant's factory to manufacture the above two medicines for which the applicant concerned has acted as ''Loan Licencee' and made available its manufacturing facility for manufacturing the ayurvedic medicines. The photo copy of the agreement is Annexure No.4. The wrapper provided to these medicines ....
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....eliance was also placed on the judgment of Hon'ble The Apex Court in 2006 (196) E.L.T. 3 (S.C.) Puma Ayurvedic Herbal (P) Ltd. V. Commissioner of Central Excise Nagpur. The notification dated 1.3.2002 has been amended by Notification dated 1.3.2006 but in that too there is no mention of tooth powder. The amended notification is Annexure No.11. 4. The next ground taken was that the applicant had a heart-attack in the year 2005 and his coronary angioplasty was done. The prescription of Escorts Hospital is Annexure No.12. On these grounds the petitioner has claimed his bail. 5. Counter affidavit has been filed on behalf of the opposite party no.1, stating that applicant's company is producing cosmetic goods and toilet preparations in the garb of ayurvedic medicines. The searching of the factory premises and preparation of panchayatnama is admitted. According to the opposite party no.1 the excise duty on cosmetic and toiletries falling under chapter 33 of the Tariff Act is payable on M.R.P./ R.S.P. basis after allowing permitted abatement under section 4A of the Act. These goods are notified by the notification annexed as Annexure 2 to the counter affidavit. The slogan p....
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....nceived. Section 13 of the Act gives power to arrest any person whom he has reason to believe to be liable to punishment under this Act. Such arrested person is kept in judicial custody and who so ever be in judicial custody has a right to approach for bail. 7. The power of arrest under section 13 of the Act is confined to the offences in the Central Excise Act and not in other section. The offence under sections 420, 467, 468 and 471 IPC have also been added for which the Central Excise officers have no power to arrest. Admittedly, no FIR was lodged in this connection. The Affidavit and counter affidavit filed by both the parties and submissions made show that there are two points under dispute:- Firstly, the production was made on behalf of T.V.C. Sky Shop Limited and applicant is not liable for payment of excise duty. The wrapper (Annexure no.5) shows as follows:- "Manufactured and marketed by TVC Skyshop Ltd." Thereafter the address of T.V.C. Skyshop has been given. This is in case of ''Roop Amruta" and ''Daant Pari" both. The learned counsel for the applicant has taken me through various papers in this regard. The pape....
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....rvedic medicine and cannot be valued under section 4A of the Act. According to the applicant's case the duty on Ayurvedic medicine is payable under section 4 of the Act and same are classified under Chapter 30. Sri Ajay Singh, learned counsel for the Central Excise Department has made submissions otherwise. According to him the two preparations are cosmetic preparation primarily meant for beautification and improvement of look and attractiveness of a person. Further, according to him, a medicine is not an item of common use and a user will use it only for treatment of a particular ailment and will stop use after the ailment is cured. 9. In this connection, my attention was again drawn to Annexure No.5, the wrapper of ''Dant Pari' and ''Roop Amruta". On both these wrappers, where the name of manufacturer is mentioned, it is also mentioned in bold letter that it is ''an ayurvedic proprietary medicine'. 10. Thus, apparently it is being sold as an ayurvedic medicine. While deciding the bail application, it is again emphasized that this is not a forum where it could be judged as to whether it is a medicine or toiletry product but it would be prima facie seen on the basis of man....