TMI Blog2003 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned that prior to 28th January, 1986, the question was whether "Banphool Oil" could be classified under Tariff Item 68 i.e. "Ayurvedic Medicament" or under Tariff Item 14F(ii) i.e. "Perfumed Hair Oil". After this date, the question is whether it falls under Tariff Item 3305.10 i.e. "perfumed hair oil" or 3003.30 i.e. "Ayurvedic Medicament". Civil Appeal No. 7610 of 1999 is against the judgment dated 24th June, 1999 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). In this case the Judicial Member took the view that Banphool Oil was classifiable as an Ayurvedic medicament whereas the Technical Member took the view that it was classifiable as a perfumed hair oil. In view of this difference, the matter was referred to a third Member who has agreed with the Judicial Member and held that Banphool Oil is classifiable as an Ayurvedic Medicament. Thus by majority, CEGAT has held that Banphool Oil is classifiable as an Ayurvedic Medicament under Tariff Item 3003.30. 2.Civil Appeals Nos. 283-284 of 2001 are against judgment of CEGAT dated 3rd April, 2000. Civil Appeal No. 2640 of 2001 is against the judgment of CEGAT dated 27th July, 2000 and Civil Appeals Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a medicament. Admittedly the product was mainly supplied to the Defence Department for use by military personnel who are posted in high altitude areas. The Court approved the principle laid down in Shri Baidyanath Ayurved Bhawan's case (supra) that in interpreting provisions of statute like the Excise Act the popular meaning as understood by the users should be applied and not the scientific or technical meaning. It was held that in deciding under which Entry a product would fall, help could be taken from the Chapter Notes. 6.Reliance was also placed upon the decision of the Sales Tax Tribunal in the case of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Shri Sadhna Aushadhalaya reported in Sales Tax Cases 1963 Vol. 14 page 813. In this case the question was whether Maha Bhringraj hair oil was a toilet article or a medicinal preparation. The Tribunal held as follows : "It is a common ground that if the hair-oil manufactured and sold by the assessee does not fall under the above entry, then it is not covered by any other entry in Schedule I or II. The question, therefore, that arises for determination is whether Maha Bhringraj Hair-oil is an article falling under entry No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l hair-oils is to tidy the hair, to promote luxuriant growth of hair and to prevent dandruff and falling hair, and it cannot be denied that if a hair-oil produces the effects proclaimed and claimed in regard to it, then the appearance of the person using it is undoubtedly improved. We have no doubt that the hair-oil manufactured by the assessee is a "toilet article" and falls also within the meaning of the term "cosmetics". Based on the above decisions, the learned Additional Solicitor General, Mr. Raju Ramachandran submitted that the product Banphool Oil is clearly classifiable as a perfumed hair oil under Tariff Item 3305.10 and not as an Ayurvedic Medicament under Tariff Item No. 3003.30. He also referred to Chapter Note l(d) to Chapter 30 which provides that preparation under Chapter 33 even if they have therapeutic or prophylactic properties would not fall under pharmaceutical products but would remain as toilet preparations. 7.On the other hand Mr. Lakshmikumaran submitted that Chapter 30 dealt with all types of medicines. In support of this submission he pointed out various Tariff Entries under this Chapter. He submitted that medicaments could be patented or proprietary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a medicament was on the revenue. In support of his submission he relied upon the case of Hindustan Ferodo Ltd. v. Collector of Central Excise, Bombay reported in 1997 (89) E.L.T. 16 (S.C.), wherein this Court has held that the onus of establishing that a product falls within a particular item is on the revenue. It has been held that if the revenue leads no evidence, then the onus is not discharged. He submitted that the Department had not made any enquiry in order to produce any evidence to show that in common parlance this product was not a medicament. He submitted that the label of the product lays down the dosage to be used for purposes of curing an ailment. He submitted that Chapter Note 1(d) could be of no assistance to the revenue as they would first have to show that the good was classifiable under Chapter 33. He relied upon Chapter Note 2 and 6 of Chapter 33 which read as follows : "2.Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings with labels, literature or other indications that they are for use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling under Chapter 33 is not at all correct. It is true that the learned counsel for26. the appellants have placed reliance on the definition of the words "cosmetic and drug" as defined in the Drugs and Cosmetics Act, 1940. On a perusal of the definitions, we can broadly distinguish cosmetic and drug as follows : "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 thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component, of cosmetic." and "A 'drug' includes all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any diseases or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects." We cannot ignore the above broad27. classification while considering the character of the product in question. Certainly, the product in question is not intended for cleansing, beautifying, promoting attractiveness or al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants that merely because there is some difference in the tariff entries, the product will not change its character. Something more is required for changing the classification especially when the product remains the same. We have noticed that the Excise authorities have accepted the decision of the Central Board of Excise and Customs treating the product in question as patent and proprietary medicine by not challenging the same or by allowing the same to become final. We have also seen that the Central Board of Excise and Customs has given numerous points in support of its conclusions for holding the product in question as patent and proprietary medicine. Principal among them at the risk of repetition can be recalled. They are as follows : "(a) It was used for the treatment of a disease known as Seborrhoeic Dermatitis commonly known as dandruff. (b) It was manufactured under a Drug licence. (c) The Food and Drugs Administration had certified it as a drug. (d) That the Drug Controller had categorically opined that Selenium Sulfide present in Selsun was in a therapeutic concentration. (f) It was included as a drug in the National Formulary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed by a Doctor but could also be available without a Doctor's prescription. He submitted that dosage would be indicated on the label only in respect of medicaments. In support of his submission, he relied upon the case of Collector of Central Excise v. Pharmasia (P) Ltd. reported in 1990 (47) E.L.T. 658 (Tribunal), wherein it has been held that mediker is classifiable under Tariff Item 33.03 as an Ayurvedic medicament. He also relies upon the case of Amrutanjan Ltd. v. Collector of Central Excise reported in [(1996) 9 SCC 413], wherein the question was whether Amrutanjan Pain Balm was an Ayurvedic medicament. It was held that merely because the ingredients were known not only to Ayurveda but to the western science, would not make the balm non-Ayurvedic. 12.We have heard the parties and considered the submissions made by them. We have also read the opinion of the majority Bench and the minority opinion of the Technical Member. It is a settled law that the onus or burden to show that a product fall within a particular Tariff 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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