9911796707
TMI Blog2005 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... sification declaration under Classification No 1/97-98 effective from 1-4-97 classifying the products Neelakeshaposhini, Jyothishmathi Taila, Sukumara Taila under Chapter Sub-heading No. 3003.39 attracting duty @ 8% ad valorem and Bhringamalaka Taila under 3003.31 attracting nil rate of duty. They were reclassified by the Assistant Commissioner, Mysore by the OIO No. 63/98 dated 30-9-94 under various sub-headings as noted in the OIO No. 191/98 dated 6-10-98. The Show cause notice No. 18/98 dated 5-7-98 called upon the assessee to show cause as to why the differential duty of Rs. 87,531/- should not be recovered on account of wrong classification in terms of Section 11A of the Excise Act. The OIO notes that the show cause notice proposed dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department had approved all the classification list filed year after year till 1997-98 effective up to 1-3-97 and the assessees were clearing the goods on payment of duty as per approved classification list. He has noted that from the definitions of "Ayurvedic Medicine" as per the Drugs & Cosmetics Act, 1940 for a preparation to merit classification as an Ayurvedic Medicine, the product in the common prevalence, should be known as Ayurvedic Medicine and all it's ingredients are mentioned in the authentic books on ayurvedic medicine. He has noted that the said products are not used or applied or rubbed on the human body or any part thereof for cleansing beautifying, promoting attractiveness or altering the appearance of human body or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3307.31 specifically covers bath oils and reference made to Note (2) to Chapter 33. 4. Heard learned SDR who submitted that the Note (2) to Chapter 33 is satisfied and hence they are cosmetic or taila preparation. He also submitted that the assessees in their pamphlets claimed the item to be bathing oil for daily use and it cools the head and refreshes the brain reducing burning of eyes and they have claimed it to be herbal hair tonic. In so far as the item Jyotishmathi Taila is concerned although it is a herbal preparation, it is not a medicaments but a cosmetic and taila preparation in terms of their own claim. He pointed out that in so far as Sukumara Taila is concerned the packet indicates it as Ayurvedic medicine. He referred to the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their therapeutic, prophylactic or curative value can only be treated as cosmetics and toilet preparation under Chapter 33. 5. Learned Consultant filed detailed written submission and contended that the items are prepared strictly according to Ayurvedic systems laid down in the reference text. They have obtained licence from Department of Indian Systems of medicine and they are to be treated as Ayurvedic Medicines and not as toilet and cosmetic preparation. He relied on the judgments rendered in the case of CCE v. Arshik Herbal Remedies (India) [2004 (168) E.L.T. 482 (Tri. - Bang.)] wherein Ayurvedic Anoop Herbal Hair Oil and Santosh Hair Tone, mainly used as medicament for treating hair fall, dandruff, pre-mature baldness has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the case of Sukumara Taila they have claimed it to be Ayurvedic Medicine to be applied to head nape of neck, chest, palms and soles and capable of and followed by hot water bath. It is seen that the appellants have manufactured by using all the ingredients known in the ayurvedic texts and taking licences under the Drugs and Cosmetics Act. The licence has been issued by the Director of Indian Systems of Medicine. Learned consultant also contended that the issue is squarely covered by the judgment of the Apex Court in the case of CCE v. Sharma Chemical Works [2003 (154) 328 (S.C.)] wherein Banphool oil which was having ayurvedic ingredients and used in treatment of headache, eye problem, night blindness, reeling head, weak memory, hyster ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to various ailments which are noted in the description by the appellants. This is also to be treated as ayurvedic medicament. In so far as neelakeshaposhini is concerned, there is no claim of the item being a medicament or having any curative properties for any ailments. It is claimed to be herbal hair tonic which helps in the luxuriant growth of the hair. Therefore, this cannot be treated as ayurvedic medicament but as toilet and cosmetic preparation under Heading 3305.99. The order holding this item to be ayurvedic medicament is set aside in the light of several judgments cited by learned DR and the impugned order is modified only to the extent i.e. by holding that neelakeshaposhini is a toilet and cosmetic preparation to fall under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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