TMI Blog2005 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellants have claimed that their product 'Janam Ghunti' is neither a distillate nor a solution but is an extraction. However, this is a matter which requires inquiry into. We approve the finding of the Tribunal that this would require looking into the process of manufacture, the composition of the product and that classification of this product cannot be decided upon without chemical test of the product. As regards 'Lal Tail' in classifying a product the scientific and technical meaning is not to be resorted to. The product must be classifiable according to the popular meaning attached to it by those using the product. As stated above, in this case the Appellants have shown that all the ingredients in the product are those which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that Chapter 30 does not apply to aqueous distillates or aqueous solutions of essential oils even though they are suitable for medicinal uses. Further, under Chapter Note 1(d) of Chapter 30 preparations of Chapter 33 would not fall under Chapter 30 even if they have therapeutic or prophylactic properties. The Tribunal has, therefore, correctly held that if 'Janam Ghunti' is an aqueous distillates or aqueous solutions of essential oils it would fall under Chapter 33 even though it may have therapeutic or prophylactic properties. The Appellants have claimed that their product 'Janam Ghunti' is neither a distillate nor a solution but is an extraction. However, this is a matter which requires inquiry into. We approve the finding of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tific and technical meaning of the terms and expressions used in the tax laws is not to be resorted to and that goods are to be classifiable according to the popular meaning attached to them by those using the product. The Tribunal has held that from the Appellants literature it can be seen that 'Lal Tail' is used for nourishing the babies skin and that the product is not used under any prescription by a medical practitioner and is not used for a limited period. The Tribunal has held that this product is used regularly but not in connection with a special ailment. On this basis, it is held that this product fails the test for a medicament. 5.Whether a product can be considered to be a medicament or not has also been considered by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that it is not a medicament. It was also held that in the product the percentage of medicament may be small but that by itself did not ipso facto mean that the product is not a medicament. It was held that generally the percentage or dosage of the medicament will be such as can be absorbed by the human body and that the medicament would necessarily be covered by fillers/vehicles in order to make the product usable. It was noted that all the ingredients used in Banphool Oil were those which were set out in the Ayurveda Text Books. It was held that the Revenue had not discharged the burden to show as to how the customers who used this product understood it and on the contrary there was evidence to show that the product was bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anging the classification without a change in the nature of a product or a change in the use of the product, or a fresh interpretation of the tariff heading by such decision. It is not the appellant's case that any of these circumstances were present in this case, besides the decision in Shree Baidyanath's case (supra) does not lay down, the test of classification as concluded by the Department at all. In that case the Tribunal had considered the evidence produced before it with regard to the sale and purchase of the product in question. It was found as a matter of fact that in common parlance the product was not described as a medicinal preparation but was described as a toilet preparation. This Court affirmed the tests laid down by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toilet preparation." These observations however were not made6. in connection with Chapter Note 1(d) of Chapter 30 the impact and purport of which may have to be considered in an appropriate case. This Court in7. Commissioner of Central Excise, Calcutta v. Sharma Chemical Works reported in 2003 (5) SCC 60 has also disapproved the approach of the Department in holding that the product was a cosmetic only because it was not sold by chemists or under doctors prescription. This, according to the decision, does not by itself lead to the conclusion that it is not a medicament. The Court reaffirmed the test as categorically laid down in Shree Baidyanath, namely, that the burden of proof that a product is classifiable under a particular tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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