Judgment

Dr. AR. Lakshmanan, J.—This civil ­appeal is directed against the judgment and ­final order No. 243/99-D in Appeal No. E/2546/93-D dated 11.03.1999 passed by the Customs, Excise & Gold (Control) Appellate Tribunal (for short ‘the CEGAT’) at New Delhi.

2. The respondent is the manufacturer of Dailymix. Four show cause notices were issued alleging that they had mis-classified their products under C.S.H. No. 2302.00 and cleared at nil rate of duty. The show cause notices added that these products are intermixture of vitamins and, therefore, correctly classifiable under C.S.H. No. 2936.00 and as such chargeable to duty at the rate of 15% advance (BED) + 5% BED (SED).

3. The Assistant Commissioner in his order dated 24.1.1991 held that the products Dailymix and Briplex were correctly classifiable under Chapter Sub-heading 2302.00. He, however, confirmed the demand of Rs. 2,04,129.18. In respect of ‘RECOVIT’ with which we are concerned in this appeal, he held that it is classifiable under Chapter Sub-heading 2936.00 as animal feed supplement. The conclusion of the Assistant Commissioner was arrived at on the basis of Dy. Chief Chemist’s report which stated that Recovit may be considered as an organic chemical (intermixture of vitamins) marked as Annexure-P2. The assessee filed an appeal before the Commissioner (Appeals) who, by his order dated 27.7.1993, set aside the order of the Assistant Commissioner and held that Recovit was correctly classifiable under Chapter Sub-heading 2302.00 as animal feed. The revenue filed an appeal against the order of the Commissioner (Appeals) which has been decided by the CEGAT vide its order dated 11.3.1999. The Tribunal has dismissed the appeal of the Department relying upon the decision of a larger Bench of the Tribunal in the case of Tetragon Chemie (P) Ltd. & Ors. Vs. CCE, Bangalore & Ors. reported in 1999 (82) ECR 98 dated 13.11.1998. The Tribunal has further held that the contention of the revenue that Recovit is merely a mixture of vitamins alone is not borne out on facts. The Tribunal held that such a product, however, if it contains other things such as anti-oxidants, solvents, stabilisers and used as animal feed will not be classified under Chapter sub-heading 2936, but will be correctly classified under Tariff heading 23.02. Aggrieved by the order of the Tribunal, the Revenue has come up in appeal.­

4. As stated earlier, we are concerned in this appeal in regard to the classification of a product known as Recovit. Now the question is whether animal feed (Recovit) is classifiable under Tariff Heading 29.36 as intermixture of vitamins or under Tariff heading 23.02 as animal feed.

5. We heard Mr. R. Venkataramani, learned senior counsel for the appellant Mr. Makarand D. Adkar, learned counsel for the respondent.

6. Learned senior counsel appearing for the appellant invited our attention to the show cause notices issued and the orders passed by all the authorities including the Tribunal and submitted that both the Commissioner (Appeals) and the CEGAT have totally ignored by Dy. Chief Chemist’s report dated 6.12.1990 in respect of Daily mix, Recovit etc. and that Recovit should be treated as animal feed supplement containing vitamins and minerals. He would further submit that both the Commissioner (Appeals) and the CEGAT have erred in placing total reliance on the judgment of Tetragon­ Chemie (P) Ltd. (supra). According to the learned senior counsel, the product in that case consists of a mixture of vitamins, minerals and various other ingredients which is not similar to the product ‘Recovit’ as the same consists of only intermixtures of vitamins and, therefore, it is correctly classifiable under Chapter Sub-heading 2936.00. Before proceeding further in considering the submission made by learned senior counsel for the appellant, it is better to reproduce both the entries.

“Heading Sub- Description of Rate No. heading goods of duty