ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this Appeal, filed by M/s Shree Baidyanath Ayurved Bhawan Ltd., is whether “Shankha Pushpi” and “Janam Ghunti”, manufactured by them is classifiable under sub-Heading No. 3003.31 of the Schedule to the Central Excise Tariff Act as claimed by them, or under sub-Heading No. 3003.39 of the Tariff as confirmed by the Commissioner (Appeals). under the impugned order.
2. Shri Vivek Kohli, learned Advocate, submitted that both the impugned products “shankha Pushpi” and “Janam Ghunti”, are classical Ayurvedic Medicine, classifiable under sub-Heading No. 3003.31 as these are manufactured in accordance with the formulas given in the Authoritative textbooks, that “Shankha Pushpi” is manufactured in accordance with the formulae prescribed in the Authoritative Textbook “Ayurved Sara Sangrah” and Janam Ghunti” is manufactured in accordance with the formulae prescribed in “Siddha Bhaishjaya Manimala” – Authoritative text books on Ayurveda; that both these text books are specified in the First Schedule to the Drugs and Cosmetics Act, 1940; that in terms of the law applicable, the impugned products satisfy all the conditions prescribed in the Tariff Act to be classified as a Classical Ayurvedic medicine; that the Director of Ayurveda, Himachal Pradesh, has duly approved these products as classical / Generic Ayurvedic medicines after duly examining all the relevant material and has given a licence to manufacture the impugned products; that the Commissioner (Appeals) has confirmed the classification of these products under sub-Heading No. 3003-39 of the Tariff on the ground that the Appellants had not submitted the name of the ingredients nor the quantity thereof used in the manufacture of a single unit of the products in question and that they had not proved that the impugned products had been manufactured exclusively in accordance with the formulae described in the Authoritative Text books.
3. The learned Advocate, further, submitted that the Department has not disputed that both the products finds place in the Authoritative Textbooks on Ayurveda specified in the First Schedule to the Drugs Act; that the Licence granted to them clearly says that “shankha Pushpi” is manufactured as per the formula and ingredients, that is “Shankha Pushpi” and brahmi, given in the Authoritative Textbook “Ayurved Sara Sangrah”, that similarly the Drug Licence states that “Janam Ghunti”, is manufactured as per the formulae and ingredients given in the Authoritative Textbook “Sidha Bhaishjaya Manimala”, that as the said licence was duly produced before the Commissioner (Appeals), he can not claim that there is no evidence to suggest that the products are manufactured in accordance with the formulae described in the Authoritative Textbooks; that in addition they had also furnished a Certificate issued by the Director, Directorate of Indian system of Medicines, Himachal Pradesh and a Certificate of All India Institute of Research in Ayurveda, Nagpur, showing that the impugned products are classical Ayurvedic medicines manufactured as per the authoritative Textbooks; that it is the settled position of law that in specialized areas, the Courts should not substitute its own opinion vis-a-vis the opinion of experts of that field; that the Appellate Tribunal has held in Herbal Products vs. CCE Calicut, (2002 (146) ELT 126 (T) ) that “In the absence of any contrary opinion of expert being on record, the opinion of the experts and that of the Drug Controller can not be held to be erroneous ..”. He also contended that when in the Authoritative Textbooks, no specified quantity of the ingredients is mentioned all ingredients are to be added in equal quantity ; that no penalty is imposable as there was no intention to commit the contravention of law and Rules with a view to evade duty.
4. Countering the arguments, Shri Vikas Kumar, learned Senior Departmental Representative reiterated findings as contained in the impugned order and submitted that the impugned products have not been manufactured according to the formulae given in the Authoritative textbooks; that in “Janam Ghunti”, all ingredients have not been mixed in equal quantity; that jaggery has been added only as “quantity sufficient”, that the Appellants have not established that the impugned products were manufactured exclusively as per the formulae prescribed in the Authoritative text books; that both the products are generic Ayurvedic medicine only; that the Appellants have not established that the quantity of various ingredients used by them is the same as mentioned in the Authoritative text books.
5. We have considered the submissions of both the sides. Rival sub-Headings of the Schedule to the Central Excise Tariff Act reads as under :
“Medicaments, including those used in Ayurvedic, unani, siddha, Homeopathic or Bio – Chemic systems.
3003.31 – – Manufactured exclusively in accordance with the formulae described in the authoritative books, specified in the First Schedule to the Drugs & Cosmetics Act, 1940 (23 of 1940) or Homeopathic Pharmacopoeia of India or the United States of America or the United Kingdom or the German Homeopathic Pharmacopoeia, as the case may be, and sold under the name as specified in such books or pharmacopoeia.
3003.39 – – Other.”
6. The Commissioner (Appeals) has clearly mentioned in the impugned order that “the product “Shankha Pushpi syrup” finds a place in the book namely “Ayurved Sara Sanghrha” and second product “Janam Ghunti” in another book, namely, “Siddha Manimala” and both these books are authoritative books as these have been specified in the First Schedule to the Drugs and Cosmetics Act, 1940.” There is no challenge of this finding by the Revenue either by way of filing Appeal or by way of filing Appeal or by way of Cross Objection and thus this finding has attained finality. Therefore, the second requirement of the sub-Heading 3003.31 that the medicaments are sold under the name as specified in the authoritative books stands satisfied. Now the issue remains to be examined as to whether the impugned medicines have been manufactured exclusively in accordance with the formulae described in the Authoritative Textbooks. The Appellants have brought on record the extract rom “Siddha Bhaishajya Manimala” relating to “Janam Ghunti”, and have contended that all the ingredients mentioned in the said book are taken in equal quantity as the Authoritative text book does not specify the quantity and the jaggery is added according to the requirement (quantity sufficient). The Revenue has not been successful in controverting this fact that all the ingredients mentioned in the Authoritative Text Books have been used in equal quantity in the manufacture of “Janam Ghunti”. Mere addition of jaggery Q.S. would not mean that the medicine has not been manufactured exclusively in accordance with the formulae described in the authoritative textbook on Ayurveda.
7.1 Similarly, the Appellants have brought on record the extract from authoritative book ‘Ayurved Saar Sangraha’ regarding their product “Shankhapushpi Syrup”. The said book describes the formulae as under :
7.2 The Appellants have given the following translation of the formulae in English, after changing the quantity into grams :
“Shankhapushpi” 125 gms, Brahmi 31.25 gms, water for decoction 3 liters, boil till water is reduced to 2.5 liters, filter through cloth, add sugar 5 kg and citic acid (Nimbu Sattva) 3.75 gm. Prepare syrup, cool and add edible green colour according to requirement.”
7.3 There is nothing brought on record by Revenue to establish that the product “Shankhapushpi syrup” is not manufactured by the Appellants according to the formulae described in the authoritative book. The Appellants have brought on record the Certificate dated 2.8.2002 issued by the Director Ayurved-cum-Licensing Authority, Simla, Himachal Pradesh to the effect that both the impugned products fall under the category of Generic Medicaments. The Revenue has also not adduced any expert opinion / Certificate in support of their contention that the impugned medicines have not been manufactured exclusively in accordance with the formulae described in the authoritative books. Accordingly we set aside the impugned order and hold that both the impugned products are classifiable under sub-Heading 3003.31 of the Central Excise Tariff.