TMI Blog2018 (8) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... n, keeping skin clean glossy and free of freckles and spots, beautifying the skin of sunburn and black patches etc, - None of the descriptions qualify for categorising the products as “medicaments” or “medicines” as they are not used in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings; rather they are more in tandem with the definition of 'cosmetics' as we find in the Drugs and Cosmetics Act, 1940, because none of the problems that these products treat can be classified as “Injury” or “ailment”. Thus, the 31 products discussed, supplied or intended to be supplied by the Appellant, are not to be classified under Chapter 30, but are to be classified under Chapter 33 (Cosmetics) or Chapter 34 (Soaps). Advance Ruling stands modified - appeal disposed off. - 02/WBAAAR/Appeal/2018 - - - Dated:- 1-8-2018 - Mr. Rakesh Kumar Sharma, Member And Ms. Smaraki Mahapatra, Member Present for the applicant: Sri Pradip Kumar Mukherjee, Authorised Representative, and Sri Anjan Dasgupta, Advocate This appeal has been filed by M/s. Akansha Hair Skin Care Herbal Unit, holding GSTIN 19AAECA3926GlZQ (hereinafter referred to as the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dryness, discoloration and burning sensation of skin. Also helps growing of your baby 11 Komal Shree Keeps skin soft, fair, glowing, stop pre-mature ageing and wrinkling of skin, prevents sun burn rashes, dryness, discoloration and burning sensation of skin. Also helps growing of our baby 12 Nabaroop (Aloe Vera and Chandan) Properly cleanses, exfoliates and moisturises the skin. Helps for removing make-ups and sunscreen which clogs pores. Strengthens the natural protection of the skin. Instantly enhances low and fairness. 1m roves the skin texture of skin and bod 13 Nabaroop (Rose and Cucumber) Properly cleanses, exfoliates and moisturises the skin. Helps for removing make-ups and sunscreen which clogs pores. Strengthens the natural protection of the skin. Instantly enhances low and fairness. 1m roves the skin texture of skin and bod 14 Nabaroop (Lemon) Properly cleanses, exfoliates and moisturises the skin. Helps for removing make-ups and sunscreen which clogs pores. Str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn quantity. 24 Namrata Helps to moisturize, soften and hydrate the skin. Prevents skin from rashes and burning sensation. 25 Aadrita Helps to moisture, soften and hydrate the skin. Prevents the skin from rashes and burning sensation 26 Komal Parash Soothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples. 27 Tanutra Protects skin from scorching sun and environmental pollution and hazards of heavy make-up. 28 Tanumitra 40 Protects from sun-burn injury. 29 Tanumitra 60 Protects from sun-burn injury. 30 Sarnajyoti Removes skin impurities, black heads, dead skin cells, pimples and scars. 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepting similar applications in future where multiple products are covered in a single application. However, since WBAAR had admitted the application and passed a Ruling, the Appeal filed is being taken up for disposal. 6. The Appellant has filed the Appeal on the following grounds: a. The Ruling of the WBAAR has erred in not passing a Ruling for products that have yet to come into existence. Under Section 95(a) advance ruling means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in Sub Section (2) of Section 97 or Sub-Section (1) of Section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant; b. Classification is to be based on the true nature of the product and not on how they are offered; c. Classification is to be done on the settled principle of the Twin Test; d. Sole reliance on labels for classification is not lawful; e. All information in the label relevant for classification has not been considered; f. Parameters for classifying the two products, Rupam and Pailab have not been adopted in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , pointed out that the Ld. WBAAR has erred by not considering that the 'heading' [as specified in the First Schedule to the CTA' 75 (Customs Tariff Act, 1975), read with the Rules for the Interpretation of the First Schedule to the CTA' 75, as well as the Section and Chapter Notes] does not require any product to be offered primarily as 'medicament' to merit classification of the relevant products as medicaments. Reference has been made to the judgements passed by the Hon'ble Supreme Court of India in B.P.L. Pharmaceuticals Ltd. Vs. Collector [1995 (77) E.L.T. 485 (S.C.)] and Lohia Machines Ltd. vs. UOI ORS [1987 (28) E.L.T. 234 (All.)]. The Appellant argued, citing the decision of the Hon'ble Tribunal in CCE, Pune vs. ESSEN Products (1) Ltd. [2006 (200) E.L.T. 342 (Tri. - Mumbai)], that packing is not indicative of classification under Chapter 33 of the Tariff as cosmetic or toilet preparation and that advertisement is not to be relied upon - essential character of the product is relevant. 11. The Appellant argued that the WBAAR pronounced their Ruling without considering the 'twin test' as settled by various pronouncements of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any permanent or semi-permanent disturbance of structure or function of any part body caused by an external agency. Such agency may be mechanical, thermal, chemical, electrical or radiational. The term may also be applied to damage caused by infecting organisms or to psychological trauma 16. Again, in Medical terms illness or ailment is often defined as A physical or mental disorder [American Heritage Medical Dictionary], or A complaint disease or physical disorder [Farlex Partner Medical Dictionary] 17. Before taking up the product-wise analysis, an understanding of the skin ailments mentioned by the Appellant in the Annexure-X of written submission, is necessary: Blackheads : Usually the primary sign of acne, consisting of a widened hair follicle filled with skin debris, bacteria, and oil called sebum. A blackhead has a wide opening to the skin and is capped with a blackened mass of skin debris. Acne : Localized skin inflammation as a result of over activity of the oil glands at the base of specialized hair follicles. Acne happens when oil (sebaceous) glands come to life around puberty, when these glands are stimulated by male hormones that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition clearly signifies that products with ingredients including substances which are not listed in The Indian Standard (I.S. 4707-2) may be classified as cosmetics. Hence we cannot unequivocally accept that by virtue of their ingredients, the products qualify as medicaments and not as cosmetics. The Appellant submitted that four of its products, namely Romancho (Lavender), Romancho (Vanilla), Romancho (Kewra) and Komol Parash contain Salicylic Acid which is mentioned at Page-54, serial No. 100 of the Indian Standard (I.S. 4707-2) published by the Bureau of Indian Standards and accordingly CANNOT B E classified as cosmetics. 21. Review of the Indian Standard (I.S. 4707-2) published by the Bureau of Indian Standards Page-54, Sl. No. 100 reveals that the maximum authorised concentration in the finished cosmetic product for Salicylic Acid is 3.0 % in Rinse off hair products and 2.0% in other products, de-categorising the item as cosmetics . From Annexure 'F' Appellant's written submission it has been found out that: Sl. No. Name of the product Quantity of Salicylic Acid per 5 gms Percenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of skin, keeping skin soft, fair, glowing, stop pre-mature ageing and wrinkling of skin, preventing sun burn rashes, dryness, discolouration and burning sensation of skin, properly cleansing, exfoliating and moisturizing the skin, helping for removal of make-ups and sunscreen which clogs pores, helping in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth, helping to skin and tighten skin pores, makes skin soft and more elastic, reducing excess skin oil, protecting from sun-burn injury. 25. None of the above descriptions qualify for categorising the products as medicaments or medicines as they are not used in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings; rather they are more in tandem with the definition of 'cosmetics' as we find in the Drugs and Cosmetics Act, 1940, because none of the problems that these products treat can be classified as Injury or ailment as already discussed in Para 14 and Para 15 above. 26. The General Explanation to Chapter 33 states that The products of headings 33.03 to 33.07 remain in these headings whether or not they contain subsidiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Nabaroop (Rose and Cucumber 34 Organic surface active products and preparations for washing the skin, in the form of liquid or cream 10 Nabaroop (Lemon) 34 Organic surface active products and preparations for washing the skin, in the form of liquid or cream 11 Nabaroop (Neem) 34 Organic surface active products and preparations for washing the skin, in the form of liquid or cream 12 Nabaroop (Orange) 34 Organic surface active products and preparations for washing the skin, in the form of liquid or cream 13 Swarnali 33 Face cream/anti-acne cream 14 Tanujjal 34 Organic surface active products and preparations for washing the skin, in the form of liquid or cream 15 Twaka Snigdha (Lemon) 33 Preparations for care of skin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
