TMI Blog1999 (8) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the product was basically in conformity with Ayurvedic Principles. (b) As against the Deputy Chief Chemists report saying that the product had a pleasant odour, the notice have produced evidence in the form of a certificate of analysis from an independent Laboratory (M/s Ana Labs., Bombay) that it is free from any Synthetic Smell and has natural odour and had argued that vide Ministry s Tariff Advice No. 27/74 vide F. No. 105/1/73-CX-Central Excise-3, dated 25-11-1974 it had been laid down that such natural odour would not make for a perfumed hair oil. (c) The label on the bottle of the product clearly stated that it was useful for irritation in the eyes, insomnia, mental depression etc. also besides other details and it was recommended for use only at bed time. Therefore, the department had not been able to establish a preponderance of probability that the product was primarily for cosmetic use. (d) Drug Controller, D.G.H.S., New Delhi had in the case of the product Ramtirath Brahmi Oil manufactured by a unit in the jurisdiction of Bombay-III Collectorate vide the U.O. No. X-11048/1/88-D, dated 24-2-1988 laid down five conditions, which would gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic colour and the finding of the report had been accepted by the assessee. It is, therefore, not correct to hold that the hair oil in question is manufactured in accordance with the recognised text book on Ayurveda. (c) Collector had also failed to appreciate the scheme of classification adopted under H.S.N. even if hair oil in question has certain therapeutic and prophylactic properties, they would continue to be classified under Chapter heading 3305 for the following reasons : (i) Chapter Note 1(d) to Chapter 30 excludes preparation of Chapter 33, even if they have therapeutic or prophylactic properties from the scope of Chapter 30; (ii) Hair oil of the type, even though manufactured by using certain preparations which find place in Ayurveda, would be excluded from Heading no. 30.03 in terms of Chapter Note 2 to Chapter 30 which defines the term Medicaments and since the hair oil of the type in question is not meant primarily for therapeutic or prophylactic use; (iii) Chapter Note 2 to Chapter 33 clearly specifies that the product suitable for use as goods of these heading and put up with indications that they are for use as cosmetics or toilet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 2 of Chapter 33 specifically includes products suitable for use as goods of these Headings (i.e. Heading no. 33.03 to 33.07) and put up in packings, labels, literature or other indications that these are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents or are held out as having subsidiary curative or prophylactic value. Ld. JDR submits that Chapter Note 2 of Chapter 33 makes it clear that even if any goods falling under Tariff heading 33.03 to 33.07 have some pharmaceutical or medicinal qualities, they would still be classified under this Chapter so long as they are put up in packings with labels, literature or other indications that they are for use as cosmetics or toilet preparations. Ld. JDR submits that by virtue of the fact that they are available as a merchandise in every store, they can be used as cosmetic, soap or toilet preparation and therefore by virtue of this note. Tariff heading 33.05 will take precedence over Tariff heading 30.03. In order to substantiate this proposition, ld. JDR draws our attention to the label ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced below :- 3. The matter has been examined. There is no dispute that the medicaments remain ayurvedic medicines and are sold as ayurvedic medicines under generic name as stated in the standard text books even if preservatives or binding agents etc. are added but the question is whether in view of the existing conditions specified under the notification the concessional rate of duty will be available or not. A view has been expressed that as long as the ingredients are added in the ayurvedic medicaments which do not have any therapeutic value and the formulation is otherwise prepared as per the prescribed text books, it may not be proper to deny the benefit of full exemption to such of those ayurvedic medicaments from excise duty under Notification No. 75/94-CE. In this context, the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board under the Ministry of Health and Family Welfare were consulted, who has opined that significant changes have taken place in the process of making of ayurvedic medicines and preservatives, inner excipients like starch, lactose and willing agents like sodium laurele sulphate are now a days widely used. They are in favour of allowing use of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter Note 2 to Chapter 33, ld. Advocate places reliance on Supreme Court s judgment in the case of BPL Pharmaceutical reported in 1995 (77) E.L.T. 485 (S.C.)]. He places reliance on paras 31 and 35 of the above said order. Another interesting argument taken by the Ld. Advocate is on the expression of tariff description in Tariff Heading 33.05. The description reads as - Preparations for use on the hair . He submits that the preparations which would fall under Tariff Heading 33.05 are meant for use on the hair and not on the scalp. He submits that a glance at the label relied upon by the Revenue, clearly indicates that it is used on the head, i.e., the scalp and not the hair. It is unlike an ordinary perfumed hair oil or normal hair oil, which are used only on the hair which are mentioned in Chapter Note 6 of Chapter 33 like brilliantines, perfumed hair oils, hair lotions, pomades and creams, hair dyes (in whatever form), shampoos, whether or not containing soap or organic surface active agents. The product in question is not indicated for use on the hair but on the scalp as a massage of the head and only by such a use that the results are expected. In the light of the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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