ORDER
S.L. Peeran, Member (J)
1. Revenue is aggrieved with Order-in-Appeal No. 5/2000 dated 31-1-2000 passed by Commissioner (Appeals) Chennai upholding the assessee’s contention that the product viz. Becozinc and Optisulin under Chapter sub-heading 3003.10 and that differential duty for the period January’97 to February’99 is not recoverable. The Commissioner (Appeals) has held that he had decided the issue in a similar matter in Order-in-Appeal No. 274/99 (M-III), dated 22-11-99 and in terms of the said order, he upheld the assessee’s contention and also in another matter in the case of Micronova Pharmaceutical (P) Ltd. vide Final Order No. 368/96-C, dated 31-5-1996. In both these orders, he also referred to another Order-in-Appeal No. 85/99 (M-II), dated 19-4-99 in respect of M/s. Raptakos, Brett & Co. Ltd., and also noted in these orders that he has taken a common view that the items manufactured by the assessee are all medicaments and not Pro-Vitamin and Vitamin to be classified under chapter sub-heading 2936.00 as held in the Order-in-Original.
2. Ld. SDR relies on the literature of the assessee and on the grounds made out in the appeal to submit that the item is not a medicament but it is required to be classified only as Pro-vitamin and Vitamin under sub-heading 2936.00 as held by the Asstt. Commissioner.
3. Ld. Counsel Shri R. Subramaniam submits that the issue is no longer res integra and the citations referred to by the Commissioner had come up for decision before the Tribunal and the Tribunal in the case of Micronova Pharmaceuticals (P) Ltd. vide Final Order No. 368/96-C, dated 31-5-96 held that the item Vitamin B Complex Tablets are to be classified under chapter sub-heading 3003.20 and not under sub-heading 2936.00. He also referred to the citations rendered in the case of CCE, Bangalore v. Juggat Pharma Ltd., reported in 1999 (114) E.L.T. 707 (T) wherein Mulmin drops and capsules are held to be not simply intermixtures of vitamins but contain other therapeutic ingredients also viz. phosphate sodium, zinc sulphate and ferrous gluconate and they are rightly classifiable as medicaments under chapter sub-heading 3003.20 of CET. On that finding, the departmental appeal was rejected wherein they claimed the item to be medicaments under 29.36. Further reliance was made to the judgment rendered in CCE, Bangalore v. Amazon Drugs (P) Ltd. – 2000 (116) E.L.T. 599 wherein Glow up tonic was held to be in the nature of patent or proprietary medicaments classifiable under sub-heading 2936.00. The Counsel also relied on the judgment of Biocon (India) Ltd. v. CCE, Bangalore, 2001 (133) E.L.T. 713 (Tri. – Bang.) wherein the Bangalore Bench has held that enzymes blended with lactose, calcium phosphate etc. are not used directly for prophylactic/therapeutic purpose and the matter was remanded for de novo consideration. The Counsel submits that in all these citations, the Tribunal has upheld the classification of similar products under chapter heading 3003.20 of CET and has overruled the departmental classification under sub-heading 2936.00. He points out that Commissioner (Appeals) has taken an identical view and his view has been affirmed and, therefore, seeks for dismissal of the appeal.
4. On a careful consideration and perusal of the impugned order, we notice that the Commissioner (Appeals) has noted the ingredients of both the products and has given a categorical conclusion that they are to be classified under chapter heading 3003.10 as medicaments in view of chapter notes and also in view of references made into the previous orders. Those matters came up before the Tribunal and the Tribunal was pleased to uphold the assessee’s contention to classify the item as medicaments in view of the nature of the product. The Tribunal in the noted orders have given a detailed finding as to how the items are required to be classified in chapter sub-heading 3003.10 and chapter heading 29.36 has been overruled. In that view of the matter, they are required to follow the rulings rendered by us in similar matters. We do not find any merit in Revenue’s appeal and hence reject the same.
