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TMI Blog2019 (6) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that the appellant has been manufacturing the cosmetic products i.e. talcum powder under the brand name of "Himgange Cool Talc" w.e.f. month of March, 2014. 3. After making necessary investigation, the Department observed that the appellant in three of these Appeals has evaded Central Excise Duty amounting to Rs. 22,72,480/- during the period March, 2014 to 04.08.2014 by wrongful availment of exemption under Notification No.49/2003-CE dated 10th June, 2003 vide a declaration dated 10.11.2008. It was observed that for availing the said exemption, the appellants have mis-classified their product i.e. talcum powder under Chapter 30 (pharmaceutical products) instead of Chapter 33 (cosmetic products) of Central Excise Tariff Act, 1985. Resultantly, a show cause notice No.43/2014 dated 13.06.2018 (in all Appeals) was served upon the appellant proposing the recovery of the Central Excise duty amounting to Rs. 38,563/- involved in the clearances made by them during the period March, 2014 to 31.03.2015 (total period) alongwith the interest and the proportionate penalty. Since the aforesaid amount of duty was deposited by the appellant vide challan No.50050 dated 02.03.2015, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafide believing the said talcum powder to be a product having therapeutic value and as such is covered under pharmaceutical products under chapter 30 of CETA. The authority has rightly observed no malafide intention on part of the appellant by classifying the product under Chapter 30 while availing the benefit of the Notification No.49/2003. 7. While impressing upon their own two appeals, ld. Counsel for the assessee has submitted that the adjudicating authority has wrongly classified the impugned product as a cosmetic product. It is submitted that appellant had given ample amount of submissions, case laws as well as the evidence to show that the product has the ingredients as that of camphor and menthol. Both of which have therapeutic use and as such the combination thereof i.e. the impugned talcum powder is also a product having therapeutic value but the said submissions, the case and the evidence have not been considered by the adjudicating authorities below. While impressing upon the definitions of cosmetic and that of medicines as mentioned under Drugs and Cosmetic Act, 1940, the ld. Counsel has impressed upon that the impugned product is neither used for cleansing nor for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owder not as a pharmaceutical product of Chapter 30 but as cosmetic product classifiable under Chapter 33. Their application in form 31 under Rule 138 of D & C Act is opined to be an admission on their part to seek permission/license to manufacture the cosmetic product. Admissions are relevant unless and until rebutted. 11. Though to rebut the said presumption, the assessee has submitted that the talcum power is not cosmetic because it is made up of the ingredients as that of menthol and camphor and both these ingredients have therapeutic value and as such, are the products as that of Ayurvedic medicaments. In view of these arguments, Principles of classification of goods acquires relevance. Rule 2 (b) thereof says that the classification of goods consisting of more than one material or substance shall be according to the principle of Rule 3, it reads as follows:- "When by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:- (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes/ medicaments. 15. The Tribunal in the case Gajra Beval Gears Ltd. Vs. Govt. of India reported in 1995 (80) ELT 505 has held that for the purpose of assessment of products claim to be Ayurvedic medicaments under Chapter 30, the following facts may be kept in view: (1) The perception of the product in popular Parlance whether as medicament or cosmetic/ toilet requisite. The advertising marketing and the manner in which the product is put up may also be taken into consideration. (2) It may be ascertained that the products claim to be medicaments should have substantial therapeutic claims, which are not subsidiary in nature and the mode of prescription and use should be similar to that of medicine / drug. It may be noted that medicaments are normally prescribed in dozes for a limited time and for specific condition or the treatment. (3) A Drug licence may be used as a guide for classification of the product. 16. Applying these principles to the "Himgange Cool Talc" we are of the opinion that the product is manufactured not under drug license but under cosmetic license. The cosmetic license was obtained when assessee was already engaged in manufacture of pharmaceutical prod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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