The excise department has moved the Supreme Court alleging that antacid Eno Fruit salt is not an ayurvedic medicament as claimed by GlaxoSmithKline Asia Pvt Ltd. It has also sought to recover differential excise duty of more than Rs 9.47 crore towards Cenvat and cess imposed on wrong classification of goods by the pharma major between January 2005 to September 2006.

A Bench headed by Justice SH Kapadia has posted the matter for hearing next week. Challenging the Customs, Excise and Service Tax Appellate Tribunals judgment that ruled in favour of the assessee and two other firms, the department said the product being a medicament and mixture of two or more chemicals packed in unit packs for retail sales fall under heading 3004.

The tribunal had held that Eno Fruit Salt was correctly classified as Patent or Proprietary ayurvedic medicine falling under Chapter Heading 3003.39.

Medicines manufactured exclusively in accordance with the formulae specified in the authenticated books are considered exclusively as ayurvedic medicaments but those which have ingredients of the formulae specified in these books but are manufactured by using the formulation not specified in these text books are considered P or P ayurvedic medicaments.

Southern Drugs Pharmaceuticals (SDP) had entered into an agreement with GSK for manufacture of the antacid.

However, after the introduction of eight-digit code by the Central Excise Tariff (Amendment) Act 2004, SDP had reclassified the product and cleared goods on payment of duty based on the value arrived at on cost construction method since March 2005.

While making its argument, the Revenue stated that the product is sold in the UK, Canada and the US under brand name ENO as a formulated product, that is neither herbal nor ayurvedic nor processed from natural sources.