TMI Blog2007 (7) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 3. Entry 60 reads thus: 60 Medicines, Drugs and all kings of pharmaceutical preparations excluding chroquine. 4. Entry 69 reads thus: Perfumery (excluding 'Agarbatties' 'Dhoop' and 'Loban') cosmetics, including took paste 'Manjan', Comb, brushes, perfumed hair oil, razor and other shaving articles but excluding razor blades. 5. The question as to whether a particular product is a drug or medicine or medicinal preparation or pharmaceutical preparation or a cosmetic has come up before the courts from time to time. Such cases have arisen under the different Acts and Taxing Statutes. 6. In the case of B.P.L. Pharmaceuticals Limited v. Collector of Central Excise Vadodara 104 STC 164, the issue before the Supreme Court was about the classification of the product marketed under the brand name Selsun under the Central Excise Tariff Act, 1985. According to the manufacturer B.P.L. Pharmaceutical Limited, the product Selsun was a medicine having anti-fungal and anti-seborrhoeic properties and was used as a detergent medium for the treatment of dandruff on the scalp, while according to the revenue, the said product was a cosmetic. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstood by the customers as an hair oil was on the revenue. This burden is not discharged as no such proof is adduced. On the contrary we find that the oil can be used for treatment of headache, eye problem, night blindness, reeling, head weak memory, hysteria, ammenesia, blood pressure, insomnia etc. The dosages required are also set out on the label. The product is registered with Drug Controller and is being manufactured under a drug licence. 9. Similarly, dealing with the question as to whether the product 'Himtaj Oil' is classifiable as Ayurvedic medicament or perfumed hair oil under the Central Excise Tariff Act, 1985, the Supreme Court referred to the case of Banphool Oil (cited supra) and held thus: 5. At this stage it must be mentioned that in this Civil Appeal the question of classification relates to Himtaj Oil . On board along with this Appeal were a number of other Appeals which related to classification of Bhanphool Oil . The arguments of learned Additional Solicitor General, Mr. Raju Ramachandran, in this Appeal were based upon the submissions made in respect of Bhanphool oil . It was submitted that if the submissions regarding Bhanphool oil are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were kept under observations, or that the results said to be have been achieved by the use of the products were obtained by keeping the patients in hospitals over a period of time. Thirdly, it was held that the Commissioner had found that the packing of the products would indicate that the products were cosmetics and not medicines or drugs since it depicted 'a lady with black flowing hair' and other similar images. 5. The decision of the Tribunal is unsustainable on the reasoning given. A product may be medicinal without having been prescribed by a Medical Practitioner. It was also not necessary for a person manufacturing medical products to claim classification under Tariff Heading 3303.03 without establishing that the products had in fact been tested on patients in controlled situations or that the outcome had not been tested for effectiveness. This would be particularly true in the cases where the products are claimed to be based on traditional ayurvedic formulae. 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 Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e help of certain ayurvedic herbs, as it intended to have beneficial effect on the hair growth, it was a hair oil and not medicine. 14. The Division Bench of the Karnataka High Court in the case of L.M. Rajappachetty and Brothers v. Commissioner of Commercial Taxes in Karnatka was seized with the question whether Herbs/roots/barks of trees could be regarded as medicinal and pharmaceutical preparations falling under Entry 41 of the Second Schedule to the Kamataka Sales Tax Act, 1976. The Division Bench of the Kamataka High Court held that an interpretation of any entry in a sales tax law should be given the same meaning which it has at common parlance and herbs/roots/barks at common parlance are drugs/medicine, but not medicinal preparations and, therefore, not covered by Entry 41 of the Schedule of the Karnataka Sales Tax Act. 15. The question as to whether 'Roshan Shital Tail' was a medicine or hair oil for the purposes of Uttar Pradesh Sales Tax Act, 1948 fell for consideration before the Single Judge of Allahabad High Court in the case of Commissioner of Sales Tax v. Raj and Co. (1986) 62 STC 76. The Single Judge held that at Entry 26(a) of notification referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in high altitude areas but it is of use for everyone as protection from dry, cold weather or sunrays. The product, therefore, essentially is protective of skin of lips. It is a 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. 17. In the case of Dabar India Limited v. Assistant Commissioner and Ors. (2007) 5 BST 190, the West Bengal Taxation Tribunal held that 'hajmola candy' was a confectionery as is understood in common parlance and not a medicine. 18. Having surveyed the aforesaid decisions, in our considered view, while deciding the question as to whether the product is a drug or medicine or medicament or pharmaceutical preparation or a cosmetic or a perfumery oil, the Court has to have regard to the nature of the article, the ingredients thereof, the uses to which they are ' put with specific reference to the extra information, as to how the goods are treated in the market as such, the literature and whether the manufacturer of the goods applied for a license under the Drugs and Cosmetics Act, 1940 as a drug or medicine and the same having been obtained, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the product Keo Karpin Baby Oil under license No. 123 MB (L) with the following composition: Item No. Name of the product Composition Packing (5) of Keo Karpin Baby Oil Each 1o ml. Contains Sch C1 Vitamin AI. P.: 20,000 I.U. Bot. of Vitamin D3 I.P.: 4,000 I. U. 60 ml. Vitamin E N.F. : 3 mg. 180 ml Olive oil B.P. : 0.05 ml And Lanolin I.P. : 0.05 gm 450 ml. Arachis Oil I.P. : 5.0 ml 100 ml. Light Liquid paraffin I.P.ad.: 10.0 ml. Sandalwood Oil : q.s. Absolute Alcohol I.P. : 1% v/v. Osopropyl Myristate BPO : 0.05 ml. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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