9911796707
TMI Blog1984 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner". According to Lever, the product was not excisable and they submitted a classification list (C.L. ) for approval. There was some correspondence between the Superintendent and Lever. On 29-8-1974, the Assistant Collector rejected the request for clearance of the product on 'nil' duty gate pass and directed Lever to clear the product on payment of duty at 30% ad. val. plus 50% of the basic duty as auxiliary duty pending receipt of test report from the Deputy Chief Chemist. It appears that the Chemical Examiner took a long time to conduct tests on the product. By his letter dated 6-5-1976, the Assistant Collector informed Lever that the test results revealed that Sunsilk Hair Conditioner was a preparation for the care of hair, classifiable under Item No. 14F(ii), CET without, however, specifying the sub-item-'a', 'b', or 'c' of 14F(ii) under which the product fell. Lever pursued the matter in appeal. The main contention was that the product was not a hair lotion, pomade or cream within the meaning of sub-item (a) nor did it fall under sub-item (b) or (c). By his order dated 14-9-1976, the Appellate Collector set aside the Assistant Collector's order and directed a de novo adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp; * * * * 6. Both sides agreed before us that while the subject product is a preparation for the care of the hair, all products for the care of the hair are not covered by the above tariff entry. Only such products as fall into one or the other of the classes specified in sub-item (ii) would be covered by the entry. A plain reading of the tariff entry can, in our view, yield only this result. Unless a preparation for the care of the hair is either (a) a lotion, cream or pomade, or (b) a perfumed hair oil or (c) a shampoo, it will not fall under Item 14F(ii). The reasoning adopted by the lower authorities in the face of the clear language employed in the entry to conclude that any preparation for the care of the hair would fall under Item 14F(ii) is specious, untenable and must be rejected. Both sides are also agreed that the product under consideration is not a shampoo. Evidently again--and both sides agree-the subject product is not a perfumed hair oil. We are, therefore, really left with only Item 14F(ii)(a). If the subject prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by additional reasons at this stage ; they have to be supported on the basis of the reasons contained therein. (d) The Appellate Collector, in the same breath has put the product under Item 14F(ii)(a) as well as 14F(ii)(c). Such an approach is untenable and illegal. (e) The Appellate Collector had, while accepting the correctness of the affidavits, sought to dismiss them by saying that a person who had not used hair lotion and hair conditioner or used only lotion, would not be able to distinguish the fine line of distinction drawn between hair lotion and hair conditioner. In other words, the Appellate Collector quite illegally and untenably chose to rely upon the evidence of persons who had not used the products rather than on that of persons who had used the products. Affidavits were a normal mode of proof and could not be arbitrarily rejected without testing their veracity. (f) Having classified the goods in 1972 as non-excisable which position held good till 1975 when the product fell under the newly created residuary Item No. 68, CET, the Department cannot abruptly change the classification without a review and without cogent reasons. A few authorities were cited in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of their chemical composition. The products must be considered as they are and not with reference to their composition, etc. A few authorities were cited in this connection. (d) A few technical authorities were cited showing that in some books, hair conditioning product is described as a cream or lotion. A hair conditioner could be either a 'leave-on" or "rinse-oil" product--prepared either as a cream or lotion. There are many types of hair lotions such as those for growth of the hair, for controlling dandruff, for setting of the hair, for permanent waving of the hair and so on. Hair conditioner is one such lotion. The fact that it is not left on the hair would not alter this position. (c) Interpretation of terms used in a fiscal statute should not be based on static concepts but should consider latest developments in technology. A few authorities were cited in this context. Since technical books have described hair conditioning products as lotions, they should be considered as lotions. 9. We have carefully considered the submissions of both sides. As seen from the records of this case, the legend on the carton-container of Sunsilk Hair Conditioner reads as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted now by the Respondent on the basis of fresh factual material which was not made available to the assessee at the earlier stages, we do not think it would be correct to say that the respondent cannot rely on relevant technical literature in support of his arguments before us. Just as in the case of submissions on points of law, we do not think it is not open to either party to adduce evidence before us in the shape of published standard works of reference. 12. The most important piece of evidence produced by Lever is the affidavit of Dr. Siva Raja Iyer since this affidavit was before the Collector (Appeals) who passed the order dated 17-12-1981 classifying the product under Item No. 68-CET (though not before the Appellate Collector who passed the impugned order in this case). It was available to the respondent for quite some time having been produced by Shri Lodha as early as on 5-3-1984. The respondents had ample time to file a counter affidavit if so desired. However, this was not done). From his credentials as furnished therein Dr. Iyer is indisputably an eminent scientist. He says that a hair conditioner which contains a cationic agent in alcoholic solution emulsion b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers in composition consisting of a cationic agent. A hair lotion works on the principle that a dilute solution of the oil or resin material causes good wetting of the hair fibre surface and subsequent evaporation of the volatile solvent alcohol leaves behind a thin film of the oily material which causes adherence of hair by cohesion of these thin films. A hair conditioner, on the other hand, improves the manageability and smoothness of hair by reducing electrostatic repulsion effects. A hair lotion is a "leave-on" product whereas a hair conditioner is a "rinsing agent". Likewise, Dr. Iyer distinguishes hair conditioner from hair cream. The latter consists mainly of mineral oil of light or medium viscosity, waxes, lanolin, preservatives, colour and perfume and emulsifying agents. Functionally, a hair cream is a "leave-on" grooming aid. It imparts setting properties to the hair fibres by virtue of the oil phase. A hair pomade is a semi-solid jelly like material composed of waxes incorporated in a tinted perfumed petroleum jelly. It is also a "leave-on" grooming agent achieving its result by acting as a physical adhesive in keeping the hair in place. Thus, on a consideration of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to dry hair either immediately after setting and drying, or at any time when extra gloss or light fixing properties are required. The book goes on to say that hair conditioning preparations for use on wet hair after a shampoo are prepared either as creams or lotions. If the product is in lotion form this can either be poured over the hair followed by combing, or diluted with water and poured repeatedly over the hair while the head is held over a basin. The cream or lotion is left on the hair for a few minutes and then rinsed off with warm water. 15. In the book " A Formulary of Cosmetic Preparations" compiled by Michael and Irene Ash, hair conditioning products are stated to be used to give the hair manageability, gloss and soft texture. They are generally used on hair that has been damaged by too frequent shampooing, bleaching, dyeing, permanents and hair straighteners. Under the head "Hair Conditioner", different formulae are specified, one in respect of cream and another in respect of lotion. In the book "Cosmetics, Toiletries and Health Care Products--Recent Developments" by George W. Owens, the formulation of lotion hair conditioner (lotion balsam type) has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de that based on these tests alone, the product can be classified as hair lotion. Again, the Department has listed some types of lotion such as for growth of hair, for controlling dandruff, for setting of hair, for permanent hair-waving and for controlling over-active sebacious glands of the scalp which lead to oily hair. From the mechanism of action of Sunsilk Hair conditioner as brought out by the evidence adduced by Lever, it cannot be said to fall in any such categories; it is for better hair management by its property of reducing electrostatic repulsion effects. No doubt, the technical authorities cited by the Departmental Representative do refer to hair conditioners as creams or lotions but these do not add up to an effective rebuttal of the evidence produced by Lever as to how the trade, users, dealers and experts in our country understand these terms. 17. The Appellate Collector, in his order of 19-12-1981, has referred to certain technical authorities (i) Formulation and Function of Cosmetics--by Jellinck (ii) Cosmetics Science and Technology -- by Sagarin. (iii) Modern Cosmeticology -- Ralph C. Harry. The Appellate Collector gives the following passage from one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1976 bringing it under Item No. 14F(ii). Even in the proceedings that commenced in 1976 and continued till the filing of the present appeal, the Department has not taken a clear and unambiguous stand that the product is a lotion. The Appellate Collector's order of 17-12-1981 classifying the subject product under Item 68, CET, ruling it out of Item 14F(ii) has not been challenged by the Department. 20. In the light of the above discussions, we hold that during the relevant period Sunsilk Hair Conditioner did not fall for classification under Item No. 14F(ii) of the CET but under Item No. 68, CET from the date of insertion of the latter item in the Tariff. 21. While arriving at the above conclusion, we have kept in view the well-settled principle of law that the burden to prove that a product falls under a specified entry in the tariff schedule lies on the revenue. We are not, therefore, referring to the case law cited by Shri Lodha in this connection. Shri Lodha had also cited case law in support of his contention that a change in the Department's stand without cogent reasons is impermissible, that affidavit is a normal mode of proof and a few other propositions. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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