9911796707
TMI Blog2005 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... nal under Rule 9B of the Central Excise Rule, 1944. The sample drawn on 19-3-1996 by the Superintendent, Central Excise was tested. After due enquiries four Show Cause Notices were issued seeking classification of the product under sub-heading 3304.00 as preparation for care of skin instead of medicaments as declared under 3003.10 and recovery of duty under Section 11A of the Central Excise Act, 1944 were proposed while finalizing the assessment. 1.3 The matter was adjudicated. The assessment & classification under sub-heading 3304.00 finalized & duty demands confirmed by the Asst. Commissioner & later confirmed by the Commissioner (Appeals). Hence this appeal. 2.1 In the order impugned the lower authority after analyzing the material, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleasant odour. Note: The information given on the collapsible tube of the sample is as follows. Vaseline Intensive Care-Heel guard-salycylic acid I.P. 1.5% w/w. Lactic acid 8.0% w/w. Triclosan 0.1% w/w, Cream base-q.s. It is also stated on the printed pamphlet of the sample as "Expert skin care from Vaseline Research-Vaseline Heel guard: A unique 4 in one solution for cracked heels specially developed by scientists at Vaseline research. It works in 4 steps to smooth out the cracks making your heel soft again." In the Technical Books here Triclosan is stated to show activity against gram-positive, gram-negative micro organisms and also against yeast & fungi. Lactic acid with certain bacterial properties is stated to be used for acidifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is claimed to be a unique providing soothing relief, removes dead skin, moisturizes & softens the heels & forms a protective barrier to moisture loss from skin and allows the ingredients to act on the skin to fill up & erase ugly scars. (c) The lower authority after considering the pamphlet, put out for the entity by the assessee, as well as from the manner it is being marketed has concluded "..It stresses on relief from cracks on heel removal of these cracks and consequent scars, moisturizing of the skin and preventive further, loss of moisture by acting as a barrier cream. This is nothing but care of skin on Heel. The pamphlet nowhere talks about curing the cracked heels as claimed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Publication Cosmetic Science & Technology by Edward Sagarin (page 45) wherein it is stated 'Cosmetics may include such drugs as are used for the cosmetic effect, as e.g. anti perspirants, the physiological effect of these preparations upon the body makes them drugs, but the purpose of their use makes them cosmetics' and thereafter conclude the use of the disputed entity to be application to prevent moisture loss by acting as a barrier cream, so as to soften feet by providing application on relief of as also erasing ugly scars left by cracks associated solely with skin care; thereby it may cure cracked heels. We cannot share the finding though we would uphold the distinction in cosmetic & drug in the tome relied. The same distinction is br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties. Therefore we find no reasons to arrive at a conclusion, that the ingredients of I.P grade Salycylic Acid added to be importing as subsidiary function of prophylactics/treatment of damaged skin in this case & that would render the entity to be classified under Chapter 33. 2.6 The lower authority has arrived at a finding that the entity is a 'Barrier Cream', for use on skin to prevent dryness to the heels. It is well settled that a 'Barrier Cream' with skin problem mitigating substances, as in this case, are to be classified under Chapter 30 as held by the Hon'ble Division Bench of Calcutta High Court in the case of classification of 'Boroline Cream' containing Boric Acid with Zinc Oxide which was classified under erstwhile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edients in that cream can result in the product to be Ayurvedic Medicaments when the said cream helps to cure a problem of cracked feet, on prescribed regular use. Then we find no reason to deviate from classification of the entity herein as Patent & Proprietary Medicament with allopathic ingredients, which soothes & cures cracked heels on regular use under Heading 3003.10.
2.9 Duty demands as made therefore cannot be upheld as classification is not upheld under Heading 33.04 as arrived by the lower authority but is held to be under Heading 3003.10.
3.1 Consequently the appeal is to be allowed after setting aside the order.
3.2 Ordered accordingly.
3.3 Appeal allowed.
(Pronounced in Court on 20-9-2005) X X X X Extracts X X X X X X X X Extracts X X X X
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