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TMI Blog2004 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... sis that boric acid, salicylic acid and zinc oxide present in the product are subsidiary pharmaceutical or antiseptic constituents and their curative and prophylactic value is subsidiary and, therefore, the product is a preparation for the care of the skin and is classifiable under Tariff Item 14F upto 28-2-1986 and under Heading No. 33.04 from 1-3-1986 and there is no legal infirmity in the order issued under Section 37B of the Central Excise Act, 1944. 3.The relevant entries of Tariff Item 14F and Heading No. 33.03 are as follows :- "14F. Cosmetics and toilet preparations not containing alcohol or opium, Indian hemp or other narcotic drugs or narcotics, namely :- (i) Preparations for the care of the skin, beauty or make-up preparations and manicure or pedicure preparations, such as beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods and skin talcs, face powders, baby powders, toilet powders, talcum powders and grease paints, lipsticks, eye-shadow and eye-brow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody, sunburn preventive pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cylic acid and boric acid which are meant to cure the disease called Milaria Rubra, prickly heat powder is a drug and, therefore, classifiable as a drug or a medicinal preparation; that whereas the Tribunal reversing the order of the Collector took the view that prickly heat powders are cosmetics and not 'medicament'. It is contended that prickly heat powder not only relieves prickly heat faster but actually helps prevent it; that when a person perspires profusely the sweat stays on the skin too long and the person becomes a potential victim of prickly heat; that specially formulated prickly heat powder absorbs the sweat better and faster and prevents the build-up of bacteria on the skin; that, therefore, the person avoids getting a red rash, itching and burning; that no person who requires ordinary talc for the purposes of beautifying her or himself would use the said products, which contain the aforesaid active therapeutic ingredients; that the said products are known as prickly heat/Milaria Rubra; that the sale of the said products are much higher in hot summer months when this disease frequently erupts. It is further submitted that the Central Government by its order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t powder whose classification was under scrutiny because of the 5% content of boric acid. It was pointed out that the Government had consulted the Drug Controller who had opined that because of the high concentration of boric acid the product may be treated as a drug. 5.The view of the Secretariat of HSN is under strong attack before us. It is stated that the question to be considered is whether the product had the essential character of preparations of Heading 33.03 or medicaments of Heading 30.04, the Secretariat thereafter purported to consider certain examples given in Martindale's Extra Pharmacopoeia and came to the conclusion that in those examples the active ingredients were higher. It is stated that boric acid was described in pharmaceutical literature as having feeble antibacterial and antifungal properties and that the European Committees had issued a directive relating to cosmetic products indicating that boric acid could be used in cosmetics in specified maximum concentration limited to 5% Salicylic acid was described as a keratolytic substance having bacteriostatic and fungicidal properties used in the treatment of fungus infections of the skin, zinc oxide was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prominent medicine but only as an aid to prevent prickly heat. The Tribunal enumerated various arguments advanced on behalf of the appellants and took the view that : "Now examining the product before us, we find that the composition of the product 'prickly heat powder is salicylic acid 0.8% to 1.5%, boric acid 5%, zinc oxide 10% to 16%, talc base of hydrate Magnesium silicate. Now the question is whether salicylic acid 0.8% to 1.5%, boric acid 5% and zinc oxide 10% to 16% are subsidiary pharmaceutical or antiseptic constituents. The assessees represented that these ingredients were not subsidiary but were significant ingredients. In support of their contention, they cited and relied upon the Drug Controller's opinion wherein the Drug Controller in the case of shower to shower had opined that because of high conc. of boric acid, the product cannot be used as talcum powder. Against this, we find that Secretariat of the C.C.C.N. in their note in para 28 opined that "In researching the question of the classification of the prickly heat powders of concern to the Indian administration, the Secretariat has determined that certain 'dusting powders' containing boric acid and zinc oxide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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