Per Shri KS Venkataramani:

The Respondents manufacture P or P medicines and filed a classification list for their product probofex capsule and liquid claiming classification under Item IB of the old Central Excise Tariff and claiming exemption under notification No. 17/70. The jurisdictional Assistant Collector felt that the product does not merit classification under TI IB but it would be classifiable under TI 68 and issued show cause notice for the purpose. The Assistant Collector considered the reply to the show cause notice and found that in their own "Medical Times" January and March, 1996 their product probofex is mentioned. The Assistant Collector held that the product probofex is not an item of food going by the general usage of the term. He also did not accept the certificate given by the Food and Drug Control Authority that the product will not fall under the category of drug. He referred to their own "Medical Times" journal where the product was recommended for building up haemoglobin with a specific dosage. The Assistant Collector found that from the literature of the product it is used as food supplement and held that food supplement cannot be equated with food. He therefore ordered classification of probofex capsule and liquid under TI 68 and under that item he also denied the exemption claimed by the Respondents under notification 234/82 because it is not food products or food preparations. Appeal against the Assistant Collector's order was allowed by the Collector of Central Excise (Appeals), Bombay leading to the present appeal.

2. The Collector (Appeals) held that the item 1B covers prepared or preserved food put up in unit containers. The Respondents' product is protein based milk and put up in unit containers. It was noted that the product was neither a drug nor medicinal preparations within the meaning of Drugs and Cosmetics Act. The Collector (Appeals) held that by all standards the product is a food supplement deserving to be classified under item IB which specifically covers food product and hence cannot be consigned to the residuary item 68 of the CET.

3. Shri VK Puri, the ld. SDR contended that the Assistant Collector has given detailed finding as to how the product cannot be considered as prepared or preserved foods. The tariff item 1B has to be interpreted and the wording therein has to be looked into for classification. Primarily it has to be decided whether the product is food and the Assistant Collector has clearly found that it did not fall under that category of food with reference to judicial decisions. The goods here are marketed as food supplement. The ld. SDR referred to the Concise Oxford Dictionary meaning of the term "supplement" as a thing or part added to remedy deficiencies. Reference was also made to Andhra Pradesh High Court judgement in Brooke Bond India Ltd. Vs. Union of India 1980 ELT 65 (AP) to say that the word "food" has no definition of universal application and it varies from statute to statute. Reliance was also placed on the Government of India decision in Re: Asian Chemical Works 1982 ELT 609 wherein it was held that the scope of the word "food" under the Food Adulteration Act will be relevant to that Act alone. Therefore certification by Food and Drug Control Authorities will not be of relevance for classification under the Central Excise. Reference was also made to the dictionary meaning of the term "preparations" to mean specially prepared substances. The ld. SDR further cited and relied upon the decision of the Tribunal in the case of Collector Vs. Aaron Pharmaceuticals Pvt. Ltd. 1994 (74) ELT 241 which is parallel on facts. The Tribunal held that the product called "Aprot" considered in that case was in the nature of tonic normally taken as food supplement and is not of a type normally considered as prepared or preserved food and the Tribunal held that it is not covered by item 1B of the CET and in the absence of any other suitable heading will be classifiable unde