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TMI Blog2004 (7) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... epartmental proceedings to revise the classification was initiated as per the Supreme Court judgment dated 30-3-95 in the case of Sri Baidyanath Ayurved Bhawan Ltd. The subsequent Ministry's circular F. No. 333/49/97 CR, dated 10-9-97 reported in 1997 (95) E.L.T. T-14 was issued relying on the Supreme Court judgment and Tribunal decisions in the case of M/s. Alpine Industries reported in 1997 (92) E.L.T. 53 (T), M/s. Richardson Hindustan Ltd., 1998 (35) E.L.T. 424 (T). As per Ministry's circular the Commissioners were directed to re-examine the assessments of products claimed to be Ayurvedic medicines under Ch. 30 so as to re-determine their classification under Central Excise Tariff Act, 1985. For the correct classification, the following facts were required to be kept in view :- (a) The perception of the product in popular parlance, whether as medicaments or cosmetics/toilet requisite. The advertising, marketing and the manner in which the product is put up may also be taken into consideration. (b) It may be ascertained that the products claimed to be medicaments, should have substantial therapeutic claims which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 3 tsps of Kesini in 30 ml of warm water in a bowl and apply it thoroughly in a wet scalp, gently massage in a circular motion and wash thoroughly." It is claimed that application of Kesini will "make a gentle, nourishing protective hair leaving the hair bouncing and lustrous." There is no mention of any specific disease or aliment that can be cured by this Kesini. Thus even though the department has no case that any special cosmetic ingredient or synthetic/chemical substances are added to the product during its preparation, it is difficult to consider this product as a medicament; rather it is to be classified as a cosmetic or toilet, preparation satisfying the basic parameters mentioned in Chapter Note 2. (ii) Similarly, the label of the product Lavanya with the face of a woman is printed as "a herbal facial mix". The details on the label reads indication- "For the skin texture and facial glow. How to use - Mix 2 tsps of powder in unboiled milk or water and apply on the face. Keep for 2 hrs. For best results keep overnight". In this case also no cosmetic or synthetic substances are added. The product was not aimed at curing any ailment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utor for booking up the sales and for withstanding the competition in the market cannot be accepted as they claim that the products are available only in their Depots/Agencies and not in open market. On the contrary, it establishes that the products are being advertised and marketed through their Depots/Agencies as cosmetic products. (D) Though the ingredients are admittedly natural herbs/plants, fruits etc. generally used in ayurvedic medicines having medicinal properties, and referred to in basic ayurvedic texts, all these 4 products are neither made as per any authoritative text nor are mentioned as such in any such books. Thus even though the 4 products are claimed as medicaments, the therapeutic values are not substantial and instead are only subsidiary in nature. Therefore, these products are presented for usage as goods of Chapter 33. Being ayurvedic medicine there is no necessity for a mandatory prescription from a physician or Doctor to purchase from the market. The specific period of usage and specific ailments for which to be used etc. are glaringly absent in the labels for all these products. Medicaments are normally prescribed in doses for a limited time and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basic ayurvedic text book. He also submitted that the goods are not offered for sale as cosmetics and not a preparations under Chapter 33. Hence it is excludable from Chapter 33. He also submitted that the goods are not for daily use as cosmetics but used for specific purposes and the use is discontinued on attaining the desired effect. It is his submission that in usage, on price and dosage the impugned goods differs from cosmetics. He also contended that no expert opinion for classifying the goods as cosmetics have been obtained by the Department whereas the appellant had proved by producing the drugs licence that the goods are ayurvedic products. He relied on the judgment rendered by the Apex Court in the case of Naturalle Health Products Pvt. Ltd. as reported in 2003 (158) E.L.T. 257 wherein it has been mentioned that if ingredients as mentioned in authoritative ayurvedic text book are used and Drugs licence is also relied then the product is required to be treated as ayurvedic medicines. He further relied on the ratio of the following judgments : - (i) Herbal Products v. CCE, Calicut - 2002 (146) E.L.T. 126 (Tri. - Bang.) (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. He relied on the Supreme Court judgments which have held that the products are for care of skin or hair and not cure of skin or hair and had been held that the therapeutic or prophylactic properties are merely subsidiary. He relied on the following judgments : - (a) CCE, Nagpur v. Puma Ayurvedic Herbal Pvt. Ltd. [2003 (155) E.L.T. 561 (Tri. - Del.) (b) Sunny Industries Pvt. Ltd. v. CCE, Calcutta [2003 (153) E.L.T. 259 (S.C.)] (c) Alpine Industries v. CCE, New Delhi [2003 (152) E.L.T. 16 (S.C.)] 4. On a careful consideration of the submission and on perusal of the detailed order of the Commissioner (Appeals) which is extracted, it is seen that :- (a) Kesini is a herbal hair wash powder. There is no doubt that ingredients are ayurvedic but even in terms of appellants' own claim it is not a medicament but it is meant only to add a mild fragrance to the newly washed hair and remove the scalps therein. There is no claim of this item being a medicament for therapeutic, prophylactic or curative purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itations clearly apply to the facts of the case. In so far as the judgments relied by the Consultant, we notice that in the case of Naturalle Health Care Product, the claim was that the item is meant for treating cough and various other ailments and that they were medicaments. The Apex Court after careful consideration found the items to be medicaments and upheld that contention, therefore this judgment is clearly distinguishable. So also in the case of Herbal Products v. CCE, Calicut, the item was considered to be medicament and in the light of the opinion of the Drug Controller and experts. So also in the case of CCE v. Pee Gee Pharma the item was found to be a medicament in the light of the evidence produced. In the case of CCE v. Sharma Chemical Works, the 'Banphool oil' was treated as medicine as it was used for treatment of headache, eye problem, night blindness, reeling head, weak memory, hysteria, ammenesia, blood pressure, insomnia, etc. Likewise, the Delhi High Court in the case of Manisha Pharma Plasto Pvt. Ltd. v. Union of India held that the nycil prickly heat powder was a drug as it had curative properties and not a cosmetic item. The Tribunal in the case of Griffon L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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