SHREE BAIDYANATH AYURVED BHAVAN Vs. C.C.E.

JUDGEMENT

(1.) The issue involved in this appeal, filed by M/s. Shree Baidyanath Ayurved Bhavan Pvt. Ltd., is whether Dant Manjan Lal, manufactured by them, is classifiable as ayurvedic medicine under heading 30.03 of the Schedule to the Central Excise Tariff Act or the same is classifiable under Sub -heading 3306.10 as tooth powder and tooth paste and whether 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 (T -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 28.07.03. 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Dant Manjan Lal manufactured by them, would merit classification as ayurvedic medicine; that this Circular has been withdrawn by the CBEC only on 31.10.96 under circular no. 259/93/96 CX dated 31.10.96; that the Board issued a fresh circular on 28.5.97 to classify Dant Manjan Lal as ayurvedic medicine, which has been withdrawn only on 10.9.97. The learned Advocate mentioned that it has been held by the hon'ble Supreme Court in the case of C.C.E., Vadodara Vs. Dhiren Chemical Industries, 2002 (139) E.L.T. 3 (S.C.) that regardless of the interpretation by the Supreme Court, if there are circulars issued by the CBEC placing a different interpretation, that interpretation will be binding upon the revenue; that same view has been reiterated by the Supreme Court in the case of C.C.E., Vadodara vs. M/s. Dhiren Chemical Industries, 2002 (143) E.L.T. 19 (S.C.).

(3.) Countering the arguments, Sh. V. Valte, learned S.D.R., submitted that the Supreme Court has considered the classification of Dant Manjan Lal in Shree Baidyanath Ayurved Bhawan Pvt. ltd. vs. C.C.E., 1996 (83) E.L.T. 492 (S.C.) holding the goods not to be an ayurvedic medicine; that demand of duty in the present appeal pertains to the period after the judgment of the Supreme Court in appellants' own case; that the circular of the Board cannot change the judgment delivered by the Supreme Court, which is the law of the land; that the ratio of both the decisions in Dhiren Chemical Industries Case (supra), pertains to the period prior to the decision delivered by the Supreme Court and not for the subsequent period. Reliance has also been placed on the decision of the Tribunal in appellants' own case as reported in 2002 (150) E.L.T. 1290 (T).