AI OCR 
TaxTMI 
TaxTMI 
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2025 (9) TMI 1348
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....s "Bulk Reisho Gano Powder" being a food/dietary supplement would merit classification under CTH 2106 9099 as "other food preparations not elsewhere specified" and be assessable to BCD @30%, CVD @ 12% of RSP after allowing abatement of 38% and SAD @ nil. It appeared that the misclassification had resulted in short collection of Rs.7,08,574/- duty which was, after due process, confirmed under section 28(8) of the Customs Act, 1962 with applicable interest. In appeal, Commissioner (Appeals) upheld the same. Hence these appeals. 3. The learned Advocate Shri M.N. Bharathi appeared for the appellant and Ld. Authorized Representative Shri Vinith Goyal appeared for the respondent. 3.1 The Ld. A.R. Shri Vinith Goyal at the outset made a preliminary observation that the issue on merits had been decided against the appellant by this Tribunals in the case of DXN Manufacturing India Pvt Ltd. Vs Commissioner of Central Excise and Service Tax Pondicherry [2017-TIOL-4600-CESTAT-MAD]. 3.2 The Ld. Counsel Shri M.N. Bharathi was fair enough to concede the same. He however stated that an appeal had been filed against the said Tribunal Order before the Hon'ble Supreme Court, and the appeal ha....
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.... relied upon by the appellant cited the judgment of the Hon'ble Supreme Court KUNHAYAMMED Vs STATE OF KERALA [2002-TIOL-50-SC-LIMITATION]. The Hon'ble Supreme Court in KUNHAYAMMED held: "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge....
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....t. Let the same be decided without further loss of time."" (emphasis added) 13. In the case of State of Maharashtra & Another Vs Sarva Shramik Sangh, Sangli & Others, [(2013) 16 SCC 16], the Hon'ble Supreme Court has held that the principle of law has been laid down in Bangalore Water Supply and Sewerage Board Vs A Rajappa, [(1978) 2 SCC 213] and held that the determination of the pending industrial dispute cannot be kept undecided until the judgment of the larger Bench is delivered. It was observed as under: "27. It is, however, contended on behalf of the appellant that the said undertaking was being run by the Irrigation Department of the first appellant, and the activities of the Irrigation Department could not be considered to be an "industry" within the definition of the concept under Section 2 (j) of the ID Act. As noted earlier, the reconsideration of the wide interpretation of the concept of "industry" in Bangalore Water Supply and Sewerage Board is pending before a larger Bench of this Court. However, as of now we will have to follow the interpretation of law presently holding the field as per the approach taken by this Court in State of Orissa Vs Dandasi Sahu,....
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....ful for the treatment of diseases like insomnia, dizziness allergy etc. The Ld. Adjudicating Authority found that the claim made was not substantiated with any valid evidence or material. On going through the manufacturer's web site he found that the subject goods are a kind of mushroom essence formulated from ganodermalucidum and are mentioned under health and food supplements and not as medicaments. He further found that the product contains a wide variety of nutrients such as polysaccharides, adenosine, triterpenoids, protein and fiber The item under import viz. "BulkReishi Gano Powder" is claimed by the manufacturer as health and food supplement and is hence correctly classifiable as health and food supplements under CTH 2106 9099 as "other food preparations not elsewhere specified". 17. Per contra the appellant has submitted that unlike the claim made by revenue, voluminous evidence has been given by the appellants herein to prove the classification. Moreover, there has been no case where the appellant have not furnished the documents sought for by the department. On the perusal of the Appeal Memorandum, we find that no application has been made for filing of additional doc....
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....ons are intended for maintaining general health or wellbeing it is appropriately classifiable under chapter 2106. 21. Similarly the Ld. Commissioner Appeals after examining the matter has stated as under: "The Appellant in the grounds of appeal have claimed that the subject goods imported by them is known for their therapeutic use dealing with a variety of health disorders and for prevention and mitigation treatment and cure diseases like dizziness, asthma, allergy etc. However the Appellant have not substantiated this claim with any evidence or material along with appeal papers. Neither at the time of personal hearing they could show any evidence in support of their claim that the subject goofs are used for therapeutic or prophylactic purposes. The Appellants have also referred to the CESTAT order in the case of DXN Herbal Manufacturing (India) Pvt. Ltd Vs Commissioner of Central Excise, Pondicherry reported in 2006(199) ELT 533. The Appellant stated that this judgment of CESTAT has been over ruled by Hon'ble Supreme Court in Civil Appeal No.1215/2006 by order dated 07.08.2015. However, it is seen that the Hon'ble Supreme Court by the order has only remanded th....