TMI Blog2007 (5) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... em as ayurvedic medicine and were also, during the part of the period manufacturing the products under the brand name, which is not their own. The officers retrieved the records from the premises of the appellant and seized the goods from the factory premises and recorded statements of various persons. Show cause notice was issued to the appellants directing them to show cause as to why the classification of the product manufactured by them should not be considered under Chapter Heading 3305 instead of 3003.20 as claimed by the appellants and why the duty for the extended period should not be demanded from them and penalty be not imposed on them. The appellants contested the show cause notice on the ground that the products, which are manufactured by them, are not hair oil and are ayurvedic medicines manufactured under the drug licence given by the FDA, Gujarat and they have produced affidavits of ayurvedic doctors to indicate that their product is not hair oil, but ayurvedic medicine. The Adjudicating Authority did not accept the contentions of the appellants and confirmed the demand, confiscated the stocks lying in the factory with an option to redeem the same on payment of fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the impugned order be set aside. 4. The ld. Jt. CDR submits that the products which are manufactured by the appellants would not get covered under the category of the ayurvedic medicines inasmuch that the quantities of the active ingredients which are used by the appellants would indicate that they are very very negligent. She submits that note to Chapter 33 clearly indicate that even if products have therapeutic or prophylactic properties, they would be covered under Chapter 33. It is her submission that mere look at the carton of the products as manufactured by the appellants would indicate that these products are for the purpose of growth of the hair and nothing more than that. It is her submission that these products would at the most be called perfumed hair oils and cannot be at any stretch of imagination called as ayurvedic medicines. She submits that the drug license as taken out by the appellants would in any case not be of much help to the appellants, as the drug authorities have not categorically mentioned that these products are ayurvedic medicines. It is her submission that the appellants had, during the relevant period, never declared the process of manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 5 years. This oil contains various ayurvedic medicinal herbs such as Sandal Wood, Ghrit Kumari, Amla, Rusi Oil, Rathanjyot, etc. It is helpful in preventing premature loss of hair and gives quick relief from head-ache as well as gives effective relief in ailment of scalp. Chandan Oil made from Chandan Wood (Sandal Wood) has medicinal properties and is very useful and effective for external use Cahndan is a wood which has ingredients of many medicated oil and therefore is used as Medicine Other ingredients in this oil have also various medicinal properties I therefore recommend the usage of aforesaid medicines to may patients." Sd/- II "I Dr Sudan D Chaudhari aged about 44 years Hindu residing at 9-A, Chaimuda Vihar, Opp. Milkanthaswar Mandir, Savarkar Nagar, Satpur, Nasik-7 do hereby state that I am practicing as a Doctor since last 17 years. I have recommended the use of Ghrit Kumari Oil/Chandan Oil of Daga Ayurvedi Cosmetics Pvt. Ltd. to my various patients since last 7 years. This oil contains various ayurvedic medicinal herbs such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Item is always on the revenue. Mere fact that a product is sold across the counters and not under a Doctors prescription, does not by itself lead to the conclusion that is not a medicament. We are also in agreement with the submission Mr. Lakshmikumaran that merely because the percentage of medicament in a product is less, does also ipso facto mean that the product is not a medicament. Generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. The medicament would necessarily be covered by fillers/vehicles in order to make the product usable. It could not be denied that all the ingredients used in Banphool Oil are those which are set out in the Ayurveda text books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is normally the use it is put to by the customers who use it. The burden of proving that Banphool Oil is understood 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 head ache, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation of the tariff heading by such decision. It is not the appellant's case that any of these circumstances were present in this case, besides the decision in Shree Baidyanath's case (supra) does not lay down, the test of classification as concluded by the Department at all. In that case the Tribunal had considered the evidence produced before it with regard to the sale and purchase of the product in question. It was found as a matter of fact that in common parlance the produce was not described as a medicinal preparation but was de scribed as a toilet preparation. This court affirmed the tests laid down by the Tribunal, namely, that since the primary object of the Excise Act was to raise revenue, resort should not be had, for the purpose of classification, to the scientific and technical meaning of the terms and expressions used therein but to their popular meaning, that is to say, the meaning attached to that by those using the product. 5. The court also noted that the Tribunal had r the assessee's claim in that case holding that "ordinarily" a medicine is prescribed by a medical practitioner and it is used for alimited time and not every day unless it is so prescribed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's Licence for the product and they have also produced evidence by way of prescriptions of Ayurvedic Doctors, who have prescribed these for treatment of rickets. As against this, the Revenue has not made any effort and not produced any evidence that in common parlance the product is not understood as a medicament." 10. The issue involved in the present case before us is in respect of oil which contains ayurvedic ingredients and identical issue was before the Hon'ble Supreme Court, in the cases of M/s. Dabur (India) Ltd. as well as M/S. Sharma Chemical Works. To our mind the issue involved in the current appeal is squarely covered by the judgments of Hon'ble Supreme Court, in the favour of appellant. 11. As regards the case law relied upon by the ld. Jt. CDR, we find that the judgment of the Hon'ble Supreme Court in the case of M/s. Zandu Pharmaceutical Works Ltd. (supra) on the contrary is supporting the case of the appellant before us inasmuch that the said judgment of the Hon'ble Supreme Court clearly upholds the ratio of M/s. Sharma Chemical Works' case. The reliance placed by the Jt. CDR on the case of M/s. B.K. Products as being identical to the product manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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