ORDER
Gowri Shankar, Member (T)
1. The appellant is a manufacturer of pharmaceuticals products. It manufactured and cleared two such products, described as ‘Hematinic Capsules’ and ‘Cough Syrup’ without payment of duty. A notice was issued in October, 1988 proposing recovery of duty on clearance of hematinic capsules from 1-4-1984 to 31-3-1988 and on cough syrup from 1986-87 till 31-3-1988. After considering the cause shown and considering reply the Additional Collector of Central Excise has confirmed the demand for duty; hence this appeal.
2. We have heard Shri T. Gunasekaran, advocate for the appellant and Shri Sanjeev Sachdeva, SDR for the Department.
3. The Additional Collector has held that the Cough Syrup and Hematinic Capsules were classifiable under the erstwhile Tariff Item 14E prior to 1-3-1986 and under Heading 3001.10 subsequently as patent or proprietary medicaments because the products bore upon the container a name which is not specified in a monograph pharmacopoea or similar publication specified in the explanation to Tariff Item 14E and Note 2 to Chapter 30. He said that the assessee was unable to produce any evidence before him that the names ‘Cough Syrup’ and “Hematinic Capsules’ are specified in any of these publications. He had also found that the appellant had certified on invoices that the goods were “proprietary and medicines”. He justified the application of the extended period on the ground that the appellant had classified the goods as liable to duty despite being aware that they were ‘patent or proprietary medicines’.
4. The appellant has not disputed that the name of the product do not figure in the publications referred to earlier. The claim that the goods cannot be considered as patent and proprietary medicines because they are supplied for Government Department, cannot be sustained. The identity of the purchaser is not relevant to determine classification. The finding of the Collector about the classification of the goods has not been successfully challenged in the appeal and we confirm that finding.
5. Classification lists filed by the appellant from time to time had been approved by the Department. Copies of 7 such classification lists containing, some of which include “Hematinic Capsules” and the rest both the products have been produced. In each of these classification lists the appellant had also included details of medicaments classified by as ‘patent and proprietary’. The Department, therefore, knew that the appellant manufactured such medicines. Before confirming classification of medicaments as other than patent and proprietary it has necessarily to be seen whether such a medicaments would be classified as patent and proprietary medicine. It is only if medicine is determined to be as other than patent and proprietary would it fall for classification under Heading 3003.20. The material before us does not indicate that the Department had asked the appellant to furnish information about the goods which it did not furnish. The names of the medicines have been correctly reproduced in the classification lists. It is not possible to say that there has been suppression of information which the appellant was required to disclose. The claim that the appellant described the goods as being “proprietary brand” and therefore knew that they were patent or proprietary medicines and as has been guilty of wilful suppression cannot be upheld. The contention of the advocates for the appellant that the certificates were put on invoices in response to requirement of the supplier, and that it cannot be said that the certificates are synonymous with saying that the goods are patent or proprietary medicines within the meaning of the tariff has to be accepted. It was for the Department to approve the correct classification, and it cannot be said that in this process the appellant either suppressed any information or made a wrong statement. The extended period of 5 years, therefore, would not apply.
6. The date of the show cause notice is not clear. It was issued in October, 1988 and covers clearances made in March of that year. It is, therefore, possible that part of the demand would not be barred by limitation. In the circumstances, while confirming the classification, we set aside the portion of the demand covering the period beyond six months from the relevant date. Demand for clearances, if any, within 6 months period is confirmed.