TaxTMI 
TaxTMI 
2004 (1) TMI 161
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....d, and another one to M/s. E. Merck (India) Ltd., Goa. 2.There are two issues involved in the impugned order, one of classification of goods and the other whether or not the show cause notices are time barred. 3.The appellants are holders of licences issued under Drugs and Cosmetics Act. They have two units one at Raigad and another at Goa. Among other medicaments both make Fixed Dose Combination of Vitamins B1, B6 and B12 called Neurobion Forte Tablets and Neurobion Injections. Admittedly they have been filing classification declarations under Rule 173B of Central Excise Rules claiming classification of their products under Chapter 30 of the Central Excise Tariff Act, as medicaments. The department did not make any hue and cry about ....
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....al Committee of Export and its recommendations were further considered by the Drugs Technical Advisory Board (DTAB). The DTAB was of the view that indiscriminate use of preparations containing FDC of Vitamins B1, B6 and B12 is to be discouraged as this product is observed to be useful only in certain conditions, viz., peripheral neuropathy due to multi-factorial etiology. You are, therefore, advised to instruct all manufacturers in your State to mention only above indications in the product insert/ literature etc. for this prod-uct. You are also requested to advise and inform all concerned personnel to use subject product for the indications so specified." 5.Accordingly the appellants started inserting the product literature as direct....
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....looks more authoritative. The letter of 1996 was not so authoritative. All the same we observe that the appellants were following the 1996 direction throughout the period under dispute. The notification speaks of "claimed are purported to be claimed". But what has been claimed from 1996 by the appellants is what the Drugs Controller directed them to claim. Thus it is safe to say that during the period 1996-99 the appellants claim that the FDC of Vitamins B1, B6, B12 have therapeutic value and are effective in the treatment of certain ailments is based on the opinion of Drugs Technical Advisory Board. 8.Those being the facts, the Commissioner while adjudicating the case concludes that FDC of Vitamins B1, B6, B12 had no Therapeutic value a....
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....e points. 10.Among other things the ld. Advocate for the appellants relied upon two decisions of the Tribunal in the case of M/s. Micronova Pharmaceuticals Pvt. Ltd. v. CCE - 2003 (158) E.L.T. 714 (Tribunal) wherein a three Member Bench of the Tribunal in its Order No. 368/1997-C, dated 31-5-1996, held that Vitamin B Complex is correctly classifiable under Chapter sub-heading 30.02 as against the department's claim that they are classifiable under Chapter sub-heading 29.36. In the second case of Softesule Limited v. CCE, Mumbai-II [2002 (146) E.L.T. 418 (T)] the Tribunal held that the products in question before them containing vitamin and minerals are classifiable under Chapter Heading 30 and not under Chapter Heading 2108.99. It is arg....
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....ion under Chapter 30 is not maintainable. He argued that the notification issued by Ministry of Health and Family Welfare says that the products in question have no therapeutic value. For this reason the products cannot be called medicaments, they are therefore classifiable under specific Heading which is 29.30 as mixture of vitamins FDC is nothing but the mixture of vitamins B1, B6, B12. On the question of limitation the Learned Consultant cited several decisions of the Supreme Court wherein it is stated that when a manufacturer bona fidely believes that the product falls under a particular heading and makes a declaration to that effect misdeclaration or suppression cannot be invoked. In this case the appellants knew all along that their p....
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....ETA on the basis of what Drugs Authorities say he should have taken notice of what the same authorities have said in 1996 about the same product. Such a stand would have been at least consistent. We do not find any substance in the Commissioner's claim that FDC of Vitamins B1, B6, B12 fall under Chapter 29.36. That Vitamins in measured doses fall under Chapter 30 of CETA finds support in the Tribunals' decisions cited elsewhere by the Advocate. We observe that the products are in the form of Vitamins in measured doses packed in retail packing and are correctly classifiable as medicaments under Chapter 30. 13.Once the classification is confirmed to be under Chapter 30, it is perhaps not necessary to go into the limitation aspect. It is cl....