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TMI Blog1998 (5) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-3-1988 at 10% adv. BED and 5% SED which appeared to the Department to have been paid incorrectly. The Chemical Examiner opined from the contents of the labels of all the 3 products, that Chlorhexidine Gluconate Solution BP had therapeutic properties and use as disinfectant which is specifically covered under CET Heading 38.08 and hence the above mentioned 3 products containing Chlorhexidine Gluconate Solution BP were disinfectants falling under that Heading and not medicaments falling under CET sub-heading 3003.10. The Department was also of the view that the product Hexidine manufactured by M/s. ICPA Health Products P. Ltd. was a product for oral hygiene classifiable under sub-heading 3306.00 and not a medicament under Chapter 30. Accordingly, a show cause notice dated 23-5-1991/29-5-1991 proposing reclassification of Hexiprep, Hexiscrub and Hexiaqua under CET sub-heading 3808.00 and Hexidine under CET sub-heading 3306.00 and proposing recovery of differential duty of Rs. 7,41,813.13 for clearances during the period from March, 1988 to November, 1989. The extended period was invoked in the notice on the ground of mis-statement and suppression of facts. The adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral clauses of disinfectants, one for janitorial or household uses directed specially against entric organisms and another for medical, veterinary, hospital and surgical uses, directed against both enteric and pyrogenic bacteria (page 796). The New Encyclopaedia Britannica, Vol. 4 at page 123 defines disinfectant as an substance such as creosote or alcohol, applied to inanimate objects to kill micro organisms. The same definition states that disinfectant and antiseptics are alike in that both are germicidal, but antiseptics are applied primarily to living tissue. The appellants rely upon the HSN Explanatory Notes to Heading 38.08 (page 529) which mentions that disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro organisms, generally on inanimate objects and that they are used, for example, in hospitals for cleaning walls, etc. or sterilising instruments. However, as we have already noted surgical disinfectants (which can otherwise be referred to antiseptics) are used only on living tissue. In the absence of any separate Heading in the Central Excise Tariff for antiseptics and having regard to the fact that microbicidal solu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants) and since Chapter 38 classifies disinfectants of all kinds, classification under Chapter 30 is ruled out. 4.2 We have held in the preceding paragraph that Hexiprep, Hexiscrub and Hexiaqua fall under CET sub-heading 38.08. The appellants state that, without prejudice to their contention that the products are classifiable under Heading 30.03, that they would fall under CET sub-heading 3808.10 and not under sub-heading 3808.90 and in this connection they rely upon the judgment of the Hon'ble Supreme Court in the case of Bombay Chemicals P. Ltd. reported in 1995 (77) E.L.T. 3 (S.C.) and the Tribunal's decision in the case of Ultima Search Ltd. reported in 1996 (81) E.L.T. 221. Sub-heading 38.08 covers "insecticides, Rodenticides, fungicides, herbicides, anti-sprouting products and plant growth regulators, disinfectants and similar products." Sub-heading 3808.10 covers "insecticides, fungicides, herbicides, weedicides and pesticides, while sub-heading 3808.90 covers "others". Since disinfectants are not specified under sub-heading 3808.10, they would be covered by sub-heading 3808.90. The case law relied upon by the appellants is distinguishable. In the case of Bombay Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of treating hexidine solution as a cosmetic or toilet preparation or a mouth wash does not arise because it is prescribed by dental surgeons, ENT specialists and Oncologists for patients suffering from specific therapeutic properties. The Dean of the Government Dental College, Bombay has certified that Chlorohexidine Gluconate solution is not merely a routine non-therapeutic or only a hygienic agent but is used as a thereapeutic measure, due to its effective medicinal value and absorption property in treatment and control of Plaque related diseases. He has further certified that the medical literature also indicates its use in treatment of root canal infections, etc. The various medical practitioners have clearly stated with one voice that Hexidine solution is definitely not a toilet preparation and is not sold as a mouth wash. The Revenue has not adduced any evidence to dislodge the evidence placed before us by the assessees. In the face of this evidence, it has to be held that hexidine is not a preparation of Chapter 33, having only subsidiary pharmaceutical or antiseptic constituent or having only subsidiary curative or prophylactic value. Further, this product, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications, namely :- (a) The Indian Pharmacopoeia; (b) The International Pharmacopoeia (c) The National Formulary of India (d) The British Pharmacopoeia (e) The British Pharmaceutical Codex (f) The British Veterinary Codex (g) The United States Pharmacopoeia (h) The National Formulary of the USA (i) The Dental Formulary of the USA and (j) The State Pharmacopoeia of the USSR or which is a brand name that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person having the right either as proprietor or otherwise to use the name or mark with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it cannot be said that the certificates are synonymous with saying that the goods are patent or proprietary medicines within the meaning of the tariff has to be accepted. It was for the Department to approve the correct classification, and it cannot be said that in this process the appellant either suppressed any information or made a wrong statement. The extended period of 5 years, therefore, would not apply." 5. In the light of the above facts and following the ratio of the decision cited supra, we hold that the appellants are not guilty of any mis-statement or suppression of facts with intent to evade payment of duty so as to make available to the Department, the extended period of limitation. Hence, we hold that the demand for the period March, 1988 to November, 1989 (the period covered in Appeal No. E/770/92-C) is barred by limitation. 6. In the result, we hold that Hexiprep, Hexiscrub and Hexiaqua are surgical disinfectants falling under CET sub-heading 3808.90, product Hexidine falls for classification under CET sub-heading 3003.10; that the demand for the period March, 1988 to November, 1989 covered in Appeal No. E/770/92-C is barred by limitation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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