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TMI Blog2003 (3) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... red out of their own raw materials and sold to M/s. Mothi Pharma Pvt. Ltd. In the month of January, 1998 the officers of the DRI visited the factory premises of the assessee as well as M/s. Mothi Pharma Pvt. Ltd. and according to them the product Krithika Hair Vitaliser was a cosmetic preparation falling under Chapter 3305.10 as against the one claimed by the party under sub-heading 3003.39, and the other items were siddha medicaments. As a follow up action proceedings were initiated against the respondents by issue of show cause notice which culminated in the order of adjudication passed by the Additional Commissioner of Central Excise, where-by he has classified Krithika Hair Vitaliser and Saagar Capsules under heading 3003.10 and demanded duty under Rule 9(2) read with sub-sections (1) and (2) of Section 11A of the CE Act, 1944 and also imposed penalty under various provisions of Central Excise Rules and also under Section 11AC of the CE Act, 1944. He has also ordered confiscation of the plant and machinery with option to redeem the same on payment of fine of Rs. 5,000/-. He has also demanded interest under Section 11AB of the Act. 4. Aggrieved by the said order of the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and include products whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils) suitable for use as goods of these Headings 33.03 to 33.07 and put up in packing with labels, literature or other indications that the form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents are held as having subsidiary curative or prophylactic value. (3) Medicaments are classifiable under Heading 30.03. However, as per Note 1(d) to Chapter 30, this Chapter will not cover preparations of Chapter 33, even if they have therapeutic or prophylactic properties. Thus this product would be classifiable under 33, if it is put up with such indication or is in such form specialised to use as a cosmetic or toilet preparation, even if it has subsidiary therapeutic of prophylactic property. (4) The product is only a Hair Oil and not a medicament though it is stated that the use of this product eradicates dandruff etc. This property is only of a subsidiary nature. (5) In the instant case the product is understood in the common parlance as a "hair preparation" and not as a medicine and this is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Madhya Pradesh High Court in the case of Panama Chemical Works v. UOI reported in 1992 (62) E.L.T. 241 wherein it was held that 'SWAD' digestive tablets having 3% active ingredients as per Ayurvedic texts and 97% sugar/liquid glucose for taste and as a preservative is classifiable under sub-heading 3003.30 of the CET as Ayurvedic medicine and not as a confectionery. He has also invited our attention to Govt. of Tamil Nadu Commercial Department letter dated 20-6-97 clarifying the position that Siddha medicines are exempt under Section 17 of the TNCT Act. Referring to ground (2) above, taken by the Revenue, he submitted that there is no indication in the product packing or in the label or literature that it is for use as cosmetic. The product is also not put up in a form clearly specialised to such use as cosmetic. He submitted that note 2 has not been correctly and fully reproduced in the appeal ground of the Revenue and in fact what is specifically stated in this note is that products "put up in packing with labels, literature or other indications, that they are for use as cosmetics, will be classified under Headings 33.03 to 33.07. Hence Note 2 of Chapter 33 is not applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in the case of Shri Baidhyanath Ayurvedic Bhavan (supra) he submitted that the classification has to be decided on the popular meaning and how the product is understood in popular parlance. He submitted that in popular parlance and in the understanding of the common man the product in question is nothing but a medicament and they have also submitted evidence to this effect before the original authority which was taken on file. As regards the ground taken by the Revenue that brand name "Krithika" belongs to another person i.e. M/s. Mothi Pharma Pvt. Ltd. and hence the exemption in terms of Notification No. 140/83-C.E. will not be applicable to the respondents, he submitted that the manufacturer of the impugned product was by M/s. Mothi Pharma Pvt. Ltd. in terms of Section 2(f) of the C.E. Act, 1944 as they were licenced by the Drug authorities to manufacture the product in question. He has also submitted a paper book containing various case laws in support of his plea and prayed for dismissing the appeals of the Revenue. 8. We have carefully considered the rival submissions and gone through the entire case records and perused the various case laws cited by both sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement that a medicament should be sold only in medical shop as prescribed by a medical practitioner. As already noted above, it is common knowledge that prickly heat powder which is held to be a medicament is available in general stores and supermarkets. It is also common knowledge that Medical shops also sell not only medicines, but also general stores such as soap, cosmetics, tooth pastes, milk products, chocolates, toffy, hair oil etc. In short there is no such restriction that a general store or supermarket cannot sell medicament. In view of our discussion above, we are of the considered opinion that having regard to the licence issued by the Director of Drugs Control in Form 25E which is specific for manufacture of drugs, the ingredients of the impugned product including its herbal content, label, literature, character and common commercial parlance understanding and the price which is claimed to be three times more than hair oil, the view taken by the lower appellate authority that it is a medicament falling under sub-heading 3003.39 cannot be found fault with and we uphold the order impugned and reject the Revenue appeals as devoid of merits. Ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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