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2004 (5) TMI 68 - SC - Central ExciseWhether Johnson's Prickly Heat Powder and Phipps Processed Talc are patent or proprietary medicines classifiable for the purposes of excise duty under the erstwhile Tariff Item 14E (as prior to 1-3-1986) and Heading 30.03 (subsequent to 1-3-1986) as claimed by the appellants or whether they are cosmetics or toilet preparations falling under the erstwhile Tariff Item 14F (prior to 1-3-1986) and Heading 33.04 (after 1-3-1986) as claimed by the Department? Held that:- In the present case when throughout the meaning given to products in question not only by the department itself but also by other departments like Drug Controller and the Central Sales Tax authorities is that the product in question is a medicinal preparation should be accepted. Applying the principles enunciated in BPL Pharmaceuticals Ltd., case [1995 (5) TMI 98 - SUPREME COURT OF INDIA] and taking into consideration various circumstances as to the manner in which the goods had been treated on the earlier occasions by the department and the product having been utilised with reference to the commercial parlance and understanding, that it had been treated as a drug it would not cease to be one notwithstanding the fact that new tariff act has come into force. What is to be seen in such cases is when in the common parlance, for purpose of the Drug Act, for purpose of Sales Tax Act and in various findings recorded on earlier occasions by the department itself having been noticed, the conclusion is inevitable that the products in question must be treated as medicinal preparations. No hesitation in reversing the view of the Tribunal and restore that of the Collector that in view of the medicinal ingredients, namely, salicylic acid and boric acid which are meant to cure the disease called Milaria Rubra, prickly heat powder is a drug and, therefore, classifiable as a drug or a medicinal preparation. Appeal allowed of assessee.
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