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TMI Blog2013 (8) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... y medicaments. The same reads as follows:- "Heading No. Subheading No. Description of goods Rate of duty (1) (2) (3) (4) 30.03 3003.10 Medicaments (including veterinary medicaments) -Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic." 15% 3. 'Medicaments' is defined under Note 2(i) under Chapter 30 which reads as follows: "2. For the purposes of heading No. 30.03: (i) 'Medicaments' means goods (other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within heading No.30.02 or 30.04 which are either:- (a) products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic uses; or (b) unmixed products suitable for such uses put up in measured doses or in packings for retail sale or for use in hospitals." (Emphasis supplied) 4. 'Patent or proprietary medicaments' is defined under Note 2(ii) which reads as under: "2(ii) 'Patent or proprietary medicaments' means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PEDICURE PREPARATIONS. 3304.10 - Lip make-up preparations. 3304.20 - Eye make-up preparations. 3304.30 - Manicure or pedicure preparations. - Other : 3304.91 - - Powders, whether or not compressed. 3304.99 - - Other (A) BEAUTY OR MAKE-UP PREPARATIONS AND PREPARATIONS FOR THE CARE OF THE SKIN, INCLUDING SUNSCREEN OR SUN TAN PREPARATIONS This part covers: (1) Lipsticks and other lip make-up preparations. (2) Eye shadow, mascara, eyebrow pencils and other eye make-up preparations. (3) Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as: face powders (whether or not compressed), baby powders (including talcum powder, not mixed, not perfumed, put up for retail sale), other powders and grease paints; beauty creams, cold creams, make-up creams, cleansing creams, skin foods (including those containing bees' royal jelly) and skin tonics or body lotions; petroleum jelly, put up in packings of a kind sold by retail for the care of the skin; barrier creams to give protection against skin irritants; anti-acne preparations (other than soaps of heading 34.01) which are designed primarily to cleanse the skin and which do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the product literature, the cream is indicated for any dryness of skin associated with winter, fissure feet, cracked nipples, in the treatment of pathological dry skin conditions and also for dryness associated with leprosy and clofazimine. Detailed discussion on the pharmaceutical content and its use for treatment of dry skin conditions of human skin is given at Paragraph 12 in Time Pharma vs. Commissioner of Central Excise, Mumbai-II1998 (99) E.L.T. 643 (Tri. Mumbai), wherein the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench, Mumbai held that the product is a medicament. Since there is no dispute as to the description of the product, the contents and the usage, we shall extract paragraph 12: - "12. It is further stated that the product literature is given for use by medical practitioners. This gives the pharmacology of the ingredients in the product; under the heading, "Indications & usage", it is stated that Moisturex cream is indicated in dryness of skin associated with winter, fissure feet, cracked nipples, in the treatment of pathological dry skin conditions like ichthyosis and it is also indicated in dryness associated with leprosy and clofazi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes the difference and not the percentage of the ingredients as held by this Court in Meghdoot Gramodyog Sewa Sansthan vs. Commissioner of Central Excise, Lucknow (2004) 174 E.L.T. 14 (S.C.). It was held that the composition and the curative properties would make the difference in the classification. If the product is composed of pharmaceutical constituents which have curative properties, the product is to be classified as medicament. To quote: "6. The appellant has drawn our attention to the composition of the six products and the uses in respect of each of these six products. This has not been doubted by the Tribunal nor indeed by the Departmental authority. The composition and the curative properties being admitted, it was not open either to the Department or the Tribunal to hold that the items were cosmetics merely by reason of the outward packing." (Emphasis supplied) 14. Another contention advanced by the appellant-Central Excise is that the product is sold not under any medical prescription but the same is available across or under the counter and, hence, the same cannot be treated as medicament. This contention also has been rejected by this Court in Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed as cosmetic simply because it has ultimately led to improvement in appearance of the person. The primary role of the product was to grow hair on his head and cure his baldness. 21. The extent or the quantity of medicament used in a particular product will also not be a relevant factor. Normally, the extent of use of medicinal ingredients is very low because a larger use may be harmful for the human body. The medical ingredients are mixed with what is in the trade parlance called fillers, or vehicles in order to make the medicament useful. To illustrate an example of Vicks Vaporub is given in which 98% is said to be paraffine wax, while the medicinal part i.e. Menthol is only 2%. Vicks Vaporub has been held to be medicament by this Court in CCE v. Richardson Hindustan Ltd. 1989 (42) ELT A100. Therefore, the fact that use of medicinal element in a product was minimal does not detract from it being classified as a medicament. 22. In order to be a medicinal preparation or a medicament it is not necessary that the item must be sold under a doctor's prescription. Similarly availability of the products across the counter in shops is not relevant as it makes no difference either wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips. It is not a curative product maybe that incidentally on cracked and chapped lips, it has some curative effect. It is also not denied that the product 'Lip Salve' is not suitable for use only for soldiers operating in high altitude areas but it is of use for every one as protection from dry, cold weather or sun rays. The product, therefore, essentially is protective of skin of lip. It is lip care product and not a 'medicament'. It is neither prescribed by any doctor nor obtainable from the Chemist or Pharmaceutical shops in the market." (Emphasis supplied) 18. Similarly, in Sunny Industries Private Limited vs. Collector of Central Excise, Calcutta 2003 (153) E.L.T. 259 (S.C.) , while considering the question as to whether the Ad-vitamin Massage Oil forte could be medicament, it has been held that the same not being used for cure of skin but for care of skin, it can only be classified under 33.04 as a skin care oil. To quote: "11. From the aforesaid Chapter notes, it is clear that heading 33.03 would include products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value and heading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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