TaxTMI 
TaxTMI 
2005 (2) TMI 196
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....sold as feed supplements which is evident from the labels of the products themselves; that the following words are clearly printed on the labels :- Caldhan - "Animal feed supplement" "Not for medicinal use" Livfit Vet - "Poultry Feed Supplement" "Not for medicinal use" 2.2 He, further, mentioned that the impugned products are not bought and sold as Ayurvedic medicaments that the samples of the products were drawn and the CRCL has opined that Ayucal Premix and Livfit can be considered as animal feed supplements; that in respect of Caldhan suspension, the CRCL has opined that the product may be considered as medicament; that ignoring these test reports the Commissioner has relied upon the reports given by Indian Veterinary Research Institute which has classified the impugned products as Ayurvedic medicaments. He....
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....e egg breakages: for improving carcass and meat quality; that the impugned order has taken that it is for prevention of rickets, prevention of prolapse, osteoporosis and osteomalacia and therefore it is an Ayurvedic Veterinary medicine; that the very approach is incorrect; that Ayucal is added to ensure that the calcium and phosphorus deficiency is taken care of and as a result, the impending danger of diseases is taken care of; that this product cannot cure or be used as a medicine for any of the diseases mentioned. He mentioned that Caldhan suspension takes care of the deficiency of calcium and phosphorus in respect of cattle and horses, sheep and goats; that Livfit Vet is recommended for chicks, layers/broilers; that it is also recommended for offsetting the damaging effects of aflatoxins, restoring reduced feed intake, improving liver functions, better feed utilization, growth, livability and production; that it is for keeping the liver fit. He also mentioned that the Adjudicating Authority has completely ignored the voluminous evidences adduced by them in the form of export opinion from various doctors, research institutions and end users certifying that the products are anima....
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...." 3.4 He submitted there is no iota of evidence to show that any of the impugned products is having therapeutic or prophylactic uses and as per the definition of medicament in the Tariff Act, the products in question cannot be classified as medicines; that moreover the Appellants also do not hold any drug licence for these products which is a condition precedent for manufacture of medicaments. 4. The learned Advocate mentioned that the impugned order is directly contrary to the decision of the Larger Bench of the Tribunal in the case of Tetragon Chemie (P) Ltd. v. CCE, Bangalore - 2001 (138) E.L.T. 414 (T-LB) wherein also the some of the disputed products were sought to be classified by the Revenue under Heading No. 30.03 as medicaments as they contained vitamins and provitamines in substantial quantities; that the Larger Bench has held these products classifiable under Heading No. 23.02 only holding that "analysis of the technical literature brings out that preparations containing vitamins, proteins, carbohydrates, minerals, etc. are feed additives or supplementary feeds for animals." He also mentioned that the Larger Bench has held that the "End use assumes importance in view o....
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....spension is a medicament; that Caldhan suspension is marketed as a medicament as it is to be administered "twice daily for 5-7 days or as advised by veterinarian" and is recommended for 'metabolic disorders and 'prevention of milk fever, prolapse, retention of placenta and infertility due to phosphorous deficiency', etc. that on re-test of the sample on the request of the Appellants, CRCL again confirmed the earlier opinion; that Head of the Department of Indian Veterinary Research Institute, Bareilly has confirmed that the product 'Caldhan Suspension' falls in the category of medicines. She, further, submitted that Centre of Advanced Studies, Animal Nutrition Division, Indian Veterinary Research Institute, Izatnagar, has opined that Livfit-vet has not been recommended to be mixed in any animal feed and it is used for "protecting and correcting damaging effect of Aflatoxins" and for "maintaining and improving liver functions"; that Animal Nutritional Institute, Jaipur has opined that has mentioned in its letter dated 20-9-2001 that the sample of Livfit vet liquid/concentrate and Caldhan do not fall in the category of animal feed. 7. The learned Senior Departmental Representative a....
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....the animal with a rational and balanced daily diet (complete food); (ii) to achieve a suitable daily diet by supplementing the basic farm produced feed with organic or inorganic substances (supplementary feed); or (iii) for use in making complete or supplementary feeds. 8.3 The Explanatory Notes further mentions that "farm - produced feed is usually rather low in proteins, minerals or vitamins. The preparation devised to compensate for these deficiencies, so as to ensure a well balanced animal diet, consist of proteins, minerals or vitamins plus additional energy feeds (carbohydrates) which serve as a carrier for the other ingredients." Further, these preparations have the same composition as 'Complete feeds' with a distinction that they have a relatively high content of one particular nutrient. The characteristic feature of the Complete Feeds, as per Explanatory Notes, is that they contain products from each of the three groups of nutrients, namely (a) "Energy" nutrients, (b) "Body-building" nutrients and (c) "Function" nutrients. Explanatory Notes, while dealing with ''Body-building nutrients", menti....
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....upplementation during pregnancy and after calving; prevention of milk fever, prolapse, retention of placenta and infertility due to phosphorus deficiency; better growth and tonicity of muscles and high milk yield in lactating animals. This is to be administered twice daily for 5-7 days or as advised by veterinarian. 9.2 We also observe that, as emphasised by the learned Advocate, all the products packing material bears the word "NOT FOR MEDICINAL USE". No drug licence also seems to have been issued to the Appellants for the manufacture of these products by the Drug Authority. In Cattle Remedies case (supra), the Tribunal has held the products to be animal feed supplement as the goods had not been listed as drugs in the Drug Licence issued to the assessee by the Drug Control Authority and the goods had never been marketed as medicines but only cattle feed supplement. Revenue has not brought on record any such licence. A perusal of all the recommended uses suggests that the impugned products are used to promote growth, maintaining and improving liver functions, for removing calcium and phosphorus deficiency for supplementation during pregnancy etc. and for preventing rickets, prola....
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....n correction of damage done by the toxin instead it help only by improving overall Health Condition of birds." Hindustan Lever Ltd. has mentioned in their Certificate that they are using Livfit Vet concentrate in their Poultry feed as a feed supplement; it does not have any therapeutic value; it only supports to the major metabolic organs of the birds. Similarly M/s. Poshak Feeds Ltd. have mentioned that they use Livfit Vet Concentrate as a feed supplement and they do not claim any medicinal value of livfit vet concentrate for treatment purpose through their feed. The CRCL report has opined that Caldhan Suspension may be treated as a P and P medicament only on the ground that the product is marketed as a medicament because the label specifies the dosage or to be administered as advised by Veterinarian. No other reasoning has been advanced by the Chemical Examiner to treat the product as medicament. There is nothing mentioned in the report as to the product's therapeutic or prophylactic properties. Mere specification of dosages or the opinion of Veterinarian for its use would not make a product a medicament. It should have either therapeutic or prophylactic properties. The judgment ....