TMI Blog1996 (12) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Others v. The State) reported in 1977 Cri. L.J. 1325, came to the conclusion that 'Boroline' is essentially a drug and the newly introduced explanation to the Tariff Item 14F cannot have any bearing on the question as to whether Boroline is a drug or cosmetic product. In terms of the aforesaid Judgment, the learned Trial Judge was pleased to record that the question has been gone into in great length by and between the parties before the departmental authorities and also before this Court and strong reliance was placed and the terms of the settlement as filed in Matter No. 358 of 1962 [G.D. Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Calcutta, Orissa Others]. The terms of settlement as noted above filed on 18th January, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it includes any drug or medicinal preparation, in whatever form for use in the internal or external treatment of or for the prevention of ailments in human being or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia. Item 14F, as it stood there, has dealt with Cosmetics and Toilet preparations for the care of skin, beauty or make-up preparations, such as beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods, skin tonics, etc. to give protection against skin irritants. Mr. Roy Chowdhury relying on this explanation submitted that Boroline is basically being used for protection against skin irritants. Mr. Roy Chowdhury furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Mr. Roy Chowdhury that it is not a medicine but a cosmetic preparation. 7.Lastly Mr. Roy Chowdhury contended that as a matter of fact, the writ petitioner/respondent has, in fact, availed of the exemption notification dated 1st October, 1985 and cannot thus claim that Boroline is an item falling under 30.03 and not 33.04. For convenience sake, the relevant extract of the exemption notification is set out hereinbelow : "In exercise of the power conferred by sub-rule 1 of Rule 8 of the Central Excise Rules, 1944, Central Government hereby exempt Antiseptic perfumed creams, falling under sub-item 1 of Item No. 14F of the 1st Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) from so much of the duty of excise leviable he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14F corresponding to 33.04 of the Central Excise Tariff Act, 1985, and as such if the goods are cleared under a particular Tariff Item, the question of not having any benefit of any exemption as is allowable by the Excise Authority, does not and cannot arise. This acceptance in our view not commit to any waiver of any contention of the party that Boroline does not come under Item 33.04 and come under 30.03. In the event of payment of duty in terms of the Appellate Court's order upon classification of the same under 33.04, the question of any classification of the same under 33.04, the question of any waiver or estoppel does not and cannot arise. 9.Strong reliance was placed by Mr. Roy Chowdhury on a decision of the Customs, Excise and G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to appreciate properly. It was done at the highest level. In any event, the factual score distinguishes the judgment from the facts of the matter under consideration. In this context, the conclusion, however, ought to be noted. In the concluding part of judgment, the Tribunal recorded : "To conclude, we hold that the product in question is clearly a massage oil, intended for care of the skin, but possibly having some marginal medicinal properties. We, therefore, hold that the lower authorities committed no error in coming to the conclusion about the classification of the product." 10.Be that as it may, by reason of the factual position, the judgment has no manner of application apart from this fact, as noted above, that an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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