TMI Blog2003 (1) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ple Floral Body Gel was proposed to be classified under sub-heading 3304.00 but it had been classified under sub-heading 3307.39 of the Tariff; that the classification of any product can not be determined under a new Heading without putting the manufacturer on Notice. He also mentioned that the Department has confirmed the classification of products "Strike" and "Keratene" (Serial Nos. 1 and 20) as claimed by them under sub-heading 3003.39 of the Tariff. 3.1 The learned Advocate submitted that the Appellants have been granted manufacturing licence of Ayurvedic Drug by the Director of Ayurveda, Harayana after they submitted the complete details of ingredients, their reference in authoritative text book, formulations and other particulars; that sub-heading 3003.31 of the Tariff covers Classic Ayurvedic Medicaments that is the medicaments manufactured exclusively in accordance with the formulae described in authoritative books specified in the First Schedule to the Drugs and Cosmetics Act, 1940 sold under name as specified under such books; that sub-heading 3003.39 covers all other Ayurvedic Medicaments manufactured otherwise that is having ingredients exclusively mentioned in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms are cured. (iv) FOREST FLOWER : (HAIR REJUVENATOR OIL) Ingredients : Bhringraj 2.65%, Brahmi 1.84%, Jatamansi 2.7%, Japa Pushp 3.15%, Nilani 2.9%, Akhrot 2.95%, Amla 3.48%, Ghrit Kumari 1.65%, Maju Phal 1.75%, Badam Tail 1.0%, Narial Tail 65.0%, Til Tail 34%, Palash 2.70%. Properties : A non-greasy hair tonic effectively controls dandruff, hair loss and brittleness of hair. This helps to improve the strength and texture of hair. Makes hair more manageable. Use : Can be used daily to impart strength and to control hair fall. (iv) BASIL 'N' NEEM (Treatment Scalp Cleanser) Ingredients : Har Singar 2%, Madhu 2.05%, Neem 3.4%, Badam Tail 1.0%, Bakayan 2.8%, Methi 3%, Nimbu 2.6%, Geru 3.9%, Shikakai 5%, Tulsi 9%, Parishrut Jal (to make 100%) Properties : Blended with ayurvedic extracts, this cleanser cleanses the scalp and hair thereby controlling the dandruff and hair fall. Use : Can be used twice a week. 3.3 He also mentioned that the Reference books are (1) Drav Gun Vigyan (2) Bhav Prakash Nighand and (3) The India Material Medica. He contended that as these products cure diseases and are manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a matter of belief and their bona fide belief was based on the facts that they possessed a Drug License from the competent authority, manufactured goods as per formulations mentioned in the authoritative text books and the Circular dated 3-10-1991; that the confusion was also prevalent which is evident from Circular No. 333/49/97-CX, dated 10-9-1997. Reliance has also been placed on the decision in Cosmic Dyes and Chemicals v. CCE, 1995 (75) E.L.T. 721 (S.C.) and Granite (India) Ltd. v. CCE, 1997 (92) E.L.T. 84 (T). He also contended that no penalty is imposable on them as it is well settled that in matters involving interpretation of the provisions of the statute, no penalty is imposable - Unipatch Rubber Indus. v. CCE, Bhopal, 2001 (130) E.L.T. 348 (T) = 2001 (42) RLT 508 (T). Finally the learned Advocate submitted that if duty is held to be payable, the price should be treated as cum duty price as held by the Supreme Court in CCE, Delhi v. Maruti Udyog Ltd. - 2002 (141) E.L.T. 3 (S.C.) = 2002 (49) RLT 1 (S.C.) and by the Larger Bench of the Tribunal in Srichakra Tyres Ltd. v. CCE - 1999 (108) E.L.T. 361 (Tri. - LB) = 1999 (32) RLT 1 (CEGAT-LB); that the demand of duty has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssifiable under Heading 33.04 of the Tariff. He, further, contended that "Turmeric 'N' Clove" as per literature, has been described as an antiseptic skin treatment paste which also helps to remove skin impurities which cause pimples and acne; that this product does not claim to be a treatment for pimples or acne and can not, therefore, be treated as a medicine; that "Turmeric 'N' Clove" is nothing but a variety of a face pack in the nature of a skin care product, falling under Heading 33.04. 4.4 The learned DR also mentioned that "Forest Flower" as per literature, is a hair tonic to give nourishment to the hair scalp and root; that the product is not packed with any printed instructions/literature indicating its use as a medicine, prescribed dosage, etc.; that there is no evidence of any clinical trials being conducted on the product being sold to, or prescribed by a medical practitioner, that the product is a hair care lotion classifiable under sub-heading 3305.99 of the Tariff; that as per literature "Basil 'N' Neem" is a scalp cleanser; that the label on the product refers to it as an antiseptic cleanser and is supposed to prevent dandruff; that the product is nothing but a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. Merely because of the fact that some ingredients mentioned in the Authoritative text books on Ayurveda have been used in the manufacture of a product, would not make the product a 'medicament'. The product should be mainly for therapeutic or prophylactic uses. This view is strengthened from Note 1(d) to Chapter 30 which provides that Chapter 30 does not cover "Preparations of Chapter 33 even if they have therapeutic or prophylactic properties. Further Note 2 to Chapter 33 retains the products under Chapter 33 only as products falling under Heading Nos. 33.03 to 33.07 even if "they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value." This was also the view of the Larger Bench of the Tribunal in the case of Shri Baidyanath Ayurved Bhavan v. CCE, Patna, 2002 (140) E.L.T. 459 (Tri. - LB) = 2002 (48) RLT 897 (CEGAT-LB) wherein the Larger Bench confirmed the classification of 'Dant Manjan Lal', comprising of several ingredients and manufactured according to the formula prescribed in the Book included in the First Schedule to the Drugs and Cosmetics Act, 1940, under Heading No. 33.06 of the Tariff and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal is an Ayurvedic medicine classifiable under Chapter 30 of the Tariff. Similarly "Turmeric 'N' Clove" is also not classifiable under Heading 33.04 as the product is used for 'acne' and 'pimples' and is classifiable as Ayurvedic Medicine under Chapter 30. The learned Advocate has mentioned that ''Basil 'N' Neem" is used on scalp and hair to control dandruff and hair fall. In BPL Pharmaceuticals Ltd. v. CCE, 1995 (77) E.L.T. 485 (S.C.), the Apex Court classified the product 'Selsun' as medicaments under Chapter 30 as it was intended to cure dandruff in spite of the fact that even the Appellants had previously described the product as "Selsun shampoo". We, therefore, hold that "Basil "N" Neem" is also not classifiable under Heading 33.05 which covers "Preparations for use on hair" but is classifiable as Ayurvedic medicament under heading 30.03. 5.5 We, however, agree with the learned DR that Products namely "La Faire" and Forest 'N' Flower" are not Ayurvedic medicaments and these are classifiable under Heading 33.04 and 33.05 of the Tariff. Product La Faire is nothing but a preparation for the care of the skin as it helps, as per label on the product, to minimize scars, blemishes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections were raised in treating their products as Ayurvedic medicines, they have themselves not contested classification under Chapter 33 in respect of 20 products out of total 29 products manufactured by them. Further Supreme Court recently in the case of BPL India Ltd. has held that extended period of limitation is invokable when the manufacturer had manufactured the products and removed the same without any intimation to the department. We, therefore, hold that the extended period of limitation is invokable. However, we agree with the learned Advocate that the price charged by them will be treated as cum duty price and the assessable value will be determined after allowing the permissible deductions in terms of Supreme Court's decision in the case of Maruti Udyog Ltd. - 2002 (141) E.L.T. 3 (S.C.) = 2002 (49) RLT 1 (S.C.). The appellants have also claimed the benefit of exemption under Notification No. 1/93 and 140/83 and they have also challenged the calculation of the duty done by the Revenue. As the matter has to go back to re-calculate the duty to be charged from the appellants, these aspects of availability of exemption notification and calculation mistake may also be re-exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
