Judgment:
1. Both the Stay Petitions are being disposed of together as the issue involved in both of them is identical. The dispute is as to whether the applicants' product namely - Anhydrous Dextrose IP/BP/USP - is properly classifiable under Heading No. 29. 13 of the Central Excise Tariff Act, 1985, or the same would be classifiable under Heading No. 17.02 as claimed by the applicants/appellants.
2 . It is seen that in one of the proceedings, the original adjudicating authority has accepted the applicants/appellants stand and held the goods to be classifiable under Chapter 17. However, for the subsequent period in which the demand has been confirmed, the goods were held to be classifiable under heading 29.13. The Commissioner (Appeals) vide his impugned Order has disposed of the appeal filed by the appellants against the second Order as well as by the Revenue against the first Order of the Assistant Commissioner holding the classification in favour of the revenue by holding that the goods are properly classifiable under Heading No. 29.13.
3. The above view has been taken by the Commissioner (Appeals) on the basis of the Tribunal's Order in the case of Anil Starch Products Ltd. v. Collector of C.Ex., Ahmedabad reported in 1996 (86) ELT-664 (Tribunal). The said decision of the Tribunal is based upon the Bombay High Court's decision in the case of Tata Exports Ltd. v. UOI reported in 1989 (43) ELT-245(Bom.) which, in turn, was confirmed by the Hon'ble Supreme Court.
4. Our attention has been drawn to another decision of the Tribunal in the case of Medopharm v. Collector of Customs reported in 1993(67) ELT-648 (Tribunal) holding the goods to be classifiable under Chapter 17. In the said decision, the Bombay High Court's judgment in the case of Tata Exports Ltd., was taken note of and it was held that that decision was given under the Customs Act, 1962. It is also the applicants'/appellants' contention that the Tribunal while delivering the judgement in the case of Anil Starch Products Ltd. has on]y gone by the Bombay High Court's decision which is not applicable inasmuch as that was for the purposes of classification under the Customs Act, whereas for classifying a product under Central Excise Act, H.S.N.Explanatory Notes are relevant, which were not considered in the case of Anil Starch Products. On the other hand, in the case of Medopharm (supra), a detailed decision was given.
5 . After considering the submissions of both sides, we find that the case of Medopharm is a judgement on the Central Excise side holding the product classifiable under Chapter 17. As such, we are of the view that, the applicants/appellant have made out a prima facie case in their favour so as to allow the Stay Petitions unconditionally. We order accordingly. We, further, note that the amounts involved in both the cases are much on the higher side, and as such, both the appeals are also listed for final disposal on 28/04/04.