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TMI Blog2004 (4) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; Ajowan ke Phool, (iv) Tarpin ka Tel, (v) Jataephal Tel (Oil Nutmeg), (vi) Nilgiri Tel, (vii) Ointment Base. 2.2 He submitted that all these ingredients are mentioned in authoritative books on Ayurveda notified under Schedule to the Drugs and Cosmetics Act; that all these ingredients were also used in Vicks Vaporub manufactured in the Appellants Hyderabad unit; that the Commissioner (Appeals), after the matter was remanded to him by the Appellate Tribunal in the case of Richardson Hindustan Ltd. v. CCE, 1988 (35) E.L.T. 424 (T) for considering whether the Vicks Vaporub satisfies the two tests namely, (i) that the ingredients are mentioned in the Ayurvedic Text books, and (ii) whether the product is known as Ayurvedic medicament in common parlance, has held vide Order-in-Appeal No. 44/93 dated 12-3-93 that all these ingredients are mentioned in authoritative text books and Vicks Vaporub is classifiable under sub-heading 3003.30 of the Tariff; that the Appeal filed by the Revenue against the said Order has been dismissed by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the above referred two tests for determining the classification of the products claimed to be as Ayurvedic medicine (excluding herbal or cosmetics) and these may accordingly, be kept in view while deciding similar cases." He also contended that the Tribunal has already confirmed in its earlier Order [1988 (35) E.L.T. 424] that the Vicks Vaporub is known as Ayurvedic medicine in common parlance. 3.1 The learned Advocate placed heavy reliance on the judgment of the Supreme Court in the case of Naturalle Health Products (P) Ltd. v. CCE, Hyderabad - 2003 (158) E.L.T. 257 (S.C.) and mentioned that the Appellants therein manufacture ayurvedic drugs including medicated cough drops and vaporub throat drops on job work basis for Procter & Gamble India Ltd.; that the Supreme Court, after considering decisions of the Court and the Larger Bench of the Tribunal has held that "it is clear that a patent Ayurvedic medicament could be one where all the ingredients find mention in the authoritative text books on Ayurveda, though the formula for preparation of the medicament is not in accordance with the formula given in those text books...... Even if it is a patented medicine in U.S.A., it doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board's Circular No. 196/30/96-CX, dated 3-4-1996 in support of his contention. He also mentioned that Wintergreen Tel is also used in Amrutanjan Pain Balm which has been held to be Ayurvedic medicament by the Supreme Court in Amrutanjan Ltd. v. CCE - 1995 (77) E.L.T. 500 (S.C.). 5.Coming to product "Chatpat Churanets", the learned Advocate submitted that the Collector, under Order-in-Original No. 57/93, dated 27-7-1993 has classified it under sub-heading 1704.90 of the Tariff; that all the ingredients contained in Chatpat Churanets are mentioned in authoritative text books and the product is known as an ayurvedic medicament in common parlance; that similar products manufactured by others have been classified as ayurvedic medicament in the following cases :- (i) Panama Chemicals v. UOI - 1992 (62) E.L.T. 241 (Bom.); (ii) Dabur India Ltd. v. CCE - 1994 (71) E.L.T. 1069; (iii) CCE v. Dabur India Ltd. - 2002 (144) E.L.T. 365 and 2002 (146) E.L.T. A311 (S.C.) 6.Countering the arguments, Mrs. Charul Baranwal, learned SDR, mentioned that the Tribunal, while r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch common parlance test does not play any significant role inasmuch as it is settled that the product in question is a medicament; that 'Sarla Tel' used in the manufacture of Vicks Inhaler is a preservative only and it finds mention in Bhavprakash Nightantu and Dhanvants Nighantu. 8.We have considered the submissions of both the sides. The main dispute in all these appeals is whether the products manufactured by them are Ayurvedic Medicine. It has been held by the Larger Bench of the Tribunal in the case of Himtaj Ayurvedic Kendra (supra) that differentiation has been made between Ayurvedic Medicine manufactured in accordance with formula prescribed in the authoritative text books specified in the first Schedule to the Drugs and Cosmetics Act and Ayurvedic Medicament manufactured otherwise and that the product is Ayurvedic Medicine even though it is not manufactured in accordance with the formula prescribed in text books. The Supreme Court has affirmed the said decision as reported in 2003 (154) E.L.T. 323 (S.C.). The Supreme Court also in the case of CCE, Calcutta v. Sharma Chemical Works, 2003 (154) E.L.T. 328 (S.C.) has held that if all the ingredients used in the product are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vicks Inhaler is also an ayurvedic medicament and allow the appeal on this count also.
10.Appeal No. E/2740/93 relates to the classification of the product namely 'Chatpat Churanets'. A perusal of impugned Order No. 57/93 passed by Commissioner Central Excise, reveals that the Adjudicating Authority has not given any specific finding on classification of the product in question as the Adjudicating Authority had simply referred to the Order dated 8-11-1991 passed by the Asstt. Collector classifying the impugned product under Heading 1704.90 of the Tariff. We, therefore, remand this matter to the jurisdictional Adjudicating Authority with the direction to decide the classification of 'Chatpat Churanets' in accordance with law and after the decision by the Commissioner Appeals against Order-in-Original dated 8-1-1991passed by the Asstt. Collector.
11.Appeal No. E/495/88-C relates to refund of duty paid by the Appellants. This appeal is also remanded to the jurisdictional Adjudicating Authority to be decided afresh as per the Order passed by us in the present appeal regarding classification of Vicks Vaporub and Vicks Inhaler.
All the appeals are disposed of in the above terms. X X X X Extracts X X X X X X X X Extracts X X X X
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