TMI Blog2002 (6) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 492 (S.C.) and Note 1(d) of Chapter 30]. 4. Essentially the issue is whether the items in question are medicaments or cosmetic, toilet preparation etc. The appellant's contention with regard to Lal Tail has been that it is a medicated Ayurvedic oil meant for external application for infants and babies. Its main ingredients are Urad (maskalai dal), shankapushpi, karpur, deodaru shal (Turpentine oil), Ratan jot. The label describes Lal Tail as "Dabur Ayurvedic Medicine" "BABY MASSAGE OIL" "Also useful for infantile Rickets" "For External Use Only". The appellants had contended that Lal Tail is an Ayurvedic medicine as it is made entirely from Herbal and other Natural items. The Commissioner rejected this contention holding that it is only a baby massage oil falling under Chapter 33 and excluded from Chapter 30 by Note 1(d) under Chapter 30. The Commissioner has specifically gone by the Apex Court's observation that "ordinarily a medicine is prescribed by a Medical Practitioner and it is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetics." The appellant's submissions that the item was manufactured under licence issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods are classifiable as aqueous distillates and aqueous solutions of essential oils under Chapter Heading 3301. Again the Commissioner held that the claims regarding remedy for stomach ailments are incidental and noted that Janma Ghunti also did not come under the rule laid down by the Apex Court that medicaments are prescribed by a Medical Practitioner and used for a limited time and not everyday. In the present appeal also the appellants have submitted that the item is only a medicine and should be classified under heading 30 and not under 33. 9. The ld. Counsel for the appellant has argued that the classification approved in the impugned order is contrary to the scheme stated in HSN notes, that addition of other materials to them would take products out of the scope of aqueous distillates and solutions of essential oils. He pointed out that sub-heading 3301 covered only aqueous distillates or aqueous solutions of essential oils, while Janam Gunti is not manufactured by any distillation process and is not an aqueous solution of essential oils. It consisted of concentrated extracts of herbs, concentrated extracts of fruits and limited percentage of essential oils. He referred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rked out on that basis. 12. Ld. Sr. Counsel representing the Revenue has strongly contested the appellant's claim for classification of the goods as Ayurvedic medicines. He submitted that the products in question are not therapeutic or prophylactic items and only therapeutic or prophylactic items could be classified as medicaments in view of definition of medicaments under Note 2(i) of Chapter 30. The appellant's own literature on Lal Tail stated that it "nourishes the babies' tender skin". It is, thus, claimed as for the care of the skin. The Counsel pointed out that Note 5 to Section 33 specifically covered Skin Tonics, Skin foods etc. under that Heading. He also pointed out that in respect of Janam Gunti also there was no evidence that these are for any specific ailments or that they cure or prevent ailments. The ld. Counsel for the Revenue pointed out that the criteria for distinguishing products classifiable as Medicines and Cosmetics under a taxing statute remain well settled by the decision of the Apex Court in the case of Shree Baidyanath Ayurved Bhavan Ltd. Those guidelines are not limited to old Central Excise Tariff. They are general guidelines and are of universal app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms and expressions used but to their popular meaning, that is to say, the meaning attached to them by those using the product. It is for this reason that the Tribunal came to the conclusion that scientific and technical meanings would not advance the case of the appellants if the same runs counter to how the product is understood in popular parlance. That is why the Tribunal observed in Paragraph 86 of the judgment as under : "So certificates and affidavits given by the Vaidyas do not advance the case of Shree Baidyanath Ayurved Bhawan Limited in the absence of any evidence on record to show and prove that the common man who uses this Dant Manjan daily to clean his teeth considers this Dant Manjan as a medicine and not a toilet requisite." It is this line of reasoning with which we are in agreement. The Tribunal rejected the claim of the appellant holding that ordinarily a medicine is prescribed by a Medical Practitioner and it is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetes. We are, therefore, of the opinion that the Tribunal applied the correct principles in concluding that the product in question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially a nourishment coming from herbs as well as fruit extracts, this item cannot also be classified as medicine. We, therefore, uphold the view that Lal Tail and Janam Gunti are not classifiable under Chapter 30 as medicine. 15. In respect of Lal Tail, it is clear that it is only a massage oil. Therefore, its classification under Chapter sub-heading 3304 as preparations for the care of the skin other than medicaments is appropriate. Note 5 to Chapter 33 makes it amply clear that all kinds of "skin foods skin tonics" are classifiable under that sub-heading. Accordingly, the classification ordered by the Commissioner is upheld. 16. In respect of Janam Gunti, there is considerable merit in the submission of the appellants that it has been classified under sub-heading 3301 without sufficient materials to support it. Its classification has to be decided after taking into account the various points made by the appellants inter alia that it cannot be classified as aqueous distillates and aqueous solutions of the essential oils in view of the process of manufacture and composition. The appellant's grievance that the classification has been ordered without chemical test or other rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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