TMI Blog2015 (10) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... T] and the decision of the Tribunal [2007 (2) TMI 573 - CESTAT, AHMEDABAD], the impugned order is upheld - Decided against Revenue. - Appeal No. E/207/2003, E/497/2003 & E/509/2004 - Final Order Nos. 41205-41207/2015 - Dated:- 11-9-2015 - R Periasami, Member (T) And P K Choudhary, JM For the Appellant : Ms Indira Sisupal, AC (AR) For the Respondent : Shri Srinivasan, Adv ORDER Per P K Choudhary The issue involved in the present appeals of the Revenue are against the Order of the Commissioner of Central Excise (Appeals) as to whether the respondent assessee's products viz., 'Neelibhringadi Thailam (Gingelly Oil base), Neelibhringadi Thailam (Coconut Oil base) and SugandhamThailam and Danta Dhavana Churnam' falling under sub-heading No. 3305.99 or the same is entitled to be classified under sub-heading No. 3003.39 of CETA,1985, as Ayurvedic formulations/medicaments as claimed by the assessee. The Commissioner (Appeals) while taking into account the entire facts and circumstances of the case has accepted the assessee's stand that the goods are to be classified as ayurvedic medicaments and has dropped the proceedings against them. Hence, the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur 2006 (196) ELT 3 (S.C) . wherein the word medicament is not defined anywhere while the word 'cosmetic' is defined in the Drugs and Cosmetics Act, 1940, as under:- A 'cosmetic' means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part threof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic . 20. It will be seen from the above definition of cosmetic that the cosmetic products are meant to improve appearance of a person, that is, they enhance beauty. Whereas a medicinal product or a medicament is meant to treat some medical condition. It may happen that while treating a particular medical problem, after the problem is cured, the appearance of the person concerned may improve. What is to be seen is the primary use of the product. To illustrate, a particular Ayurvedic product may be used for treating baldness. Baldness is a medical problem. By use of the product if a person is able to grow hair on his head, his ailment of baldness is cured and the persons appearance ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to buy and use these products. 6. The reliance placed on Note 1(1) of Chapter 30 and Note 2 of Chapter 33 has no application to the case of the respondent as the revenue failed to note that as per note 2 to chapter 33, the product must first be a cosmetic and that it must be used as such and it should also be put in such packing declaring it to be a cosmetic product (para 31 of BPL Pharmaceutical case decided by the Hon'ble Supreme Court). 7. The revenue further failed to note that in terms of Board Circular dated 03.04.1996 also, the use of preservative by the manufacturers of ayurvedic medicines does not exclude it from the purview of the classification as an ayurvedic medicament so long as they are prepared in accordance with the formulae prescribed in the authoritative books and the ingredients added other than those prescribed in the authoritative text books do not have any therapeutic value. Following are the case laws relied upon by the respondents:- 1. CCE Delhi Vs. Ishaan Research Lab Pvt. Ltd. 2008 (236) ELT 7 (S) 2. CCE, Nagpur Vs. Baidyanath Ayurved Bhavan Ltd. 2009 (237) ELT 225 (SC) 3. CCE, Mumbai-IV Vs. CIENS Laboratories Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts only. 6. The manufacturing process remains the same over the years, that the ingredients are available in the authoritative books of ayurveda, that the department was aware of the various letters from the doctors who prescribe the particular product as a medicine in view of its medicinal properties, that till date there has been no change in the ingredients and that there was no change in the tariff to classify the product in question under 3305. 7. Major reasons for classification as a medicament are: a. The goods have been manufactured as per formula in the ayurvedic system of medicine for which a drug licence has been issued b. The three thailams are understood by doctors, dealers and users to be primarily an ayurvedic medicament c. The goods are certified by doctors to be useful in treating certain skin disorders of the scalp and face, prevent hair falling and gives coolness to the eyes and the body system d. As per judicial pronouncements the ingredients must find a place in authoritative texts of the ayurveda, unani and siddha system. 5. The Apex Court has dealt this issue in detail in the case of CIENS Laboratories Mumbai (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove. What is to be seen is the primary use of the product. To illustrate, a particular Ayurvedic product may be used for treating baldness. Baldness is a medical problem. By use of the product if a person is able to grow hair on his head, his ailment of baldness is cured and the persons appearance may improve. The product used for the purpose cannot be described 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 C.C.E. v. Richardson Hindustan Ltd. - 1989 (42) E.L.T. A100. Therefore, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c medicine. 4. As against the above we find that the Revenue in their grounds of appeal has again reiterated the same stand that the product cannot be considered to be a medicine inasmuch as medicine is always prescribed fort a limited period to cure a particular disease. Further, there is no mention of dose or doses to be directed by the physician. As such they have contended that it cannot be held to be Ayurvedic medicine. 5. We find that all the above submissions were raised by the Revenue before the Tribunal in the case of HimtajAyurvedicUdyog Kendra and the same were not accepted by the Tribunal. Apart from the Larger Bench decision in the above case we also take note of the Hon'ble Supreme Courts decision in the case of Sharma Chemicals reported in 2003 (154) E.L.T. 328 (S.C.) laying down that the product should be manufactured in accordance with the various ingredients specified in the authoritative ayurvedic books and under a licence from the Drug Control authority have to be classified as Ayurvedic medicine. We find that apart from the various facts enumerated above the assessee has also produced affidavit/certificate/clinical trial report showing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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