2004 (2) TMI 253

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....ether the demand of duty can be confirmed against them. 2. Shri Vivek Kohli, learned Advocate, fairly mentioned that the Larger Bench of the Tribunal in their own matter as reported in 2002 (140) E.L.T. 459 (Tri. - LB), has held that Dant Manjan Lal is classifiable under Heading 33.06 of the Central Excise Tariff as tooth powder. He, however, mentioned that the appeal, filed by them, has been admitted by the Hon'ble Supreme Court as per order dated 28-7-2003. He has, further, submitted that the demand of duty cannot be confirmed against them as the CBEC has clarified, vide circular dated 25-9-91, that Dant Manjan Lal manufactured by them, would merit classification as ayurvedic medicine; that this circular has been withdrawn by the CBEC ....

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....f the Tribunal in appellants' own case as reported in 2002 (150) E.L.T. 1290 (T). 4. We have considered the submissions of both the sides. In view of the Supreme Court's decision in appellants' own case as well as the Larger Bench decision classifying Dant Manjan Lal under Heading 33.06, the classification, as ordered by the Commissioner (Appeals) under the impugned order, is upheld. The product Dant Manjan Lal is classifiable under sub-heading 3306.10 of the Central Excise Tariff Act. The demand of duty confirmed against them pertains to the period after pronouncement of the judgment in their own case by the Supreme Court wherein their product was not held to be an ayurvedic medicine. The similar contentions, relying upon the decision i....

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....id decision will prevail and Government's instructions dated 25-9-91 cannot hold good for concluding that demand for six months cannot be raised. We do not find any substance in the submissions of the learned Advocate that the said decision of the Supreme Court as reported in 1996 (83) E.L.T. 492 (S.C.) was under old Central Excise Tariff. The change in the Tariff will not make the product an Ayurvedic Medicament." 5. Further, no benefit will be available to the appellants on account of Board's letter dated 28-5-97 as the same has been superseded by a subsequent letter dated 10-9-97 itself. Secondly, a product is either ayurvedic medicine or not an ayurvedic medicine irrespective of the fact that the Supreme Court decision was under the ....