TMI Blog1990 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusively Ayurvedic, Unani Sidha or Homeopathic. From 1-3-1975, residuary Item No. 68 all other goods not elsewhere specified was inserted in the Central Excise Tariff. Medicines other than those classified under Item 14-E, i.e. Ayurvedic medicines etc. were classified under Tariff Item 68 CET from 1-3-1975. The appellants applied for and obtained Central Excise licence for the product Dant Manjan Lal and cleared it on payment of duty under Item 68. By a Notification 62/78 dated 1-3-1978, all drugs, medicines, pharmaceuticals and drug intermediates not elsewhere specified were included among the list of goods exempted and falling under Item 68 from the whole of duty of excise. After the issue of the Notification 62/78 dated 1-3-1978 as above, M/s. B.A.B. stopped payment of duty on Dant Manjan Lal. The Superintendent of Central Excise, Naini, Allahabad issued a Notice on 9-7-1981 to M/s. B.A.B. asking them to apply for Central Excise Licence for their product Dant Manjan Lal and to pay duty on clearances during the period 1975 to 1981. The manufacturers M/s. B.A.B. contended that Dant Manjan Lal was an ayurvedic medicine and manufactured under Drug Licence and not dutiable, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines. The product is also used as an ayurvedic medicine. It is pres.c.ribed, bought and sold as Ayurvedic drugs for prevention ad treatment of mouth and teeth diseases like Pyorrhoea, Alveerine, Toothache, Gum Boils etc. and because of its recognised therapeutic and medicinal values, is pres.c.ribed as an Ayurvedic medicine by Vaidyas, Ayurvedic Doctors. The Central Government has specified Ayurved Sar Sangrah in the First S.c.hedule to the Drugs and Cosmetics Act, 1940 at Serial No. 54-B under Heading Ayurved and Sidha Systems under Notification dated 28-8-1987 and by virtue of this inclusion, all the medicines with their formula and ingredients mentioned therein are now phar-nsacopoeial medicines, according to the definition of Section 3 of Drugs and Cosmetics Act, 1940. Shri Lachman Dev then cited and relied upon the case law reported in 1988 (36) E.L.T. 369A (Bom.) - Leukoplast (India) Ltd. v. State of Goa in which the Bombay High Court held that the definition of drug given in the Drugs and Cosmetics Act is relevant for determining its meaning in trade and that popular or commercial meaning of the term is synonymous with the meaning given in the Act. Shri Lachman Dev s atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same case, the view taken by it that definition in the Drugs and Cosmetics Act cannot be imported into the Central Excises Salt Act or for interpretation of Central Excise Tariff, had been followed by the Tribunal in a further decision in the case of Sunny Industries (P) Ltd. v. Collector of Central Excise -1989 (39) E.L.T. 468 and further submitted that the Tribunal in taking this view had followed the Supreme Court decision in the case of Commissioner of Sales Tax, Madliya Pradesh v. Jaswant Singh Charan Singh - AIR 1967 S.C. 1454. The learned DR further cited the case law AIR 1981 S.C. 951 in the case of Union of India v. R.C. Jain to say that definition in other Act cannot be imported into a different statute and submitted that the Tribunal is bound to follow the ratio of the Supreme Court decision and these decisions have consistently held a view different from that of the Bombay High Court decision relied upon by M/s. B.A.B. As regards their claim for exemption under Notification 179/77, Shri Chakraborty pointed out that this was a new ground taken in the de novo proceedings and outside the purview of the directions given by the Collector (Appeals) to the Asstt. Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is a substance or preparation used in the treatment of diseases and must have a curative power so as to make it effective for treatment of ailments. 73. The main thrust of the argument of Shree Baidyanath Ayurved Bhawan Ltd. is that all the ingredients of its Dant Manjans are exclusively Ayurvedic medicines for the treatment of mouth and teeth diseases and as such its Dant Manjans are also Ayurvedic medicines. 74. We do not agree with this contention of Shree Baidyanath. 75. The end product should not be known by its ingredients. Hon ble Supreme Court in the case of Delhi Cloth Mills v. State of Rajasthan -1980 E.L.T. 383 held that a commodity should be considered as a whole and should not be classified only from the point of view of one of the elements that go in the making of it, however, important that element may be. 76. In the case before us, the end product is Dant Manjan in a powder form. Allahabad High Court in the case of Commissioner of Sales Tax, U.P. v. Sarin Chemicals (24 STC 406) held that tooth powder used for cleaning the teeth is an article of cosmetics or toilet requisites. In that case the manufacturer had claimed medicinal properties for their pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiseptic but in cleansing teeth, they serve as detergents for teeth and mucous membranes of the mouth since water is usually used to dispose of the dentifrice after brushing....... 78. In the presence of these authoritative pronouncements, it hardly lies in the mouth of Shree Baidyanath that its product Dant Manjans which is essentially nothing but a tooth powder is a medicine or drug". The findings are fully applicable to the facts of the present case. It has been argued before us that there have been certain changed circumstances and that these should be sufficient ground for us to take a different view from the earlier decision of the Tribunal cited supra. One such circumstance is the inclusion of Ayurvedic Sar Sangrah in the First S.c.hedule of the Drugs and Cosmetics Act, 1940 vide Gazette Notification dated 28-8-1987, according to which Dant Manjan Lal is prepared. However, a perusal of the decision of the Tribunal supra shows that the Tribunal had applied the test of common parlance, trade understanding and judicial decisions on the subject. In para 99 of its decision, the claim of inclusion in the Drugs and Cosmetics Act as an argument has been taken up and dealt with o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drug or Ayurvedic medicine and, accordingly, is not eligible for exemption under Notification 55/75, as amended by Notification 62/78. It is further well settled by the decision of the Hon ble Delhi High Court in the case of Paras Laminates Pvt. Ltd. v. CEGAT -1990 (45) E.L.T. 521 that judicial propriety and decorum requires that if a two-Member Bench is appraised of a decision given by a three-Member Bench, the said Bench should accept and follow the same and not embark upon to reconsider the matter even if they are inclined to take a different view. Therefore, we are clearly bound by the previous decision of the Tribunal by a Co-ordinate Bench, more so, when this matter is stated to be also pending before the Supreme Court. In this view of the matter, the order of the Collector holding that w.e.f. 20-8-1987 Dant Manjan Lal has acquired the status of medicine preparation within the meaning of definition of Ayurvedic drug, as laid down in Section 3 of the Drugs and Cosmetics Act, 1940 is not maintainable because it is seen that the classification of the goods for the period on and from 28-8-1987 was not at all before that authority and the order of the Collector (Appeals) does not ..... 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