2004 (6) TMI 394 - AT - Central Excise

Summary

Issues:
Classification of cosmetic product under Heading 3003.10 or 3304.00, reliance on Delhi High Court decision, comparison of chemical compositions, pendency of appeal before Supreme Court, product classification as medicinal preparation or cosmetic.

Classification under Heading 3003.10 or 3304.00:
The case involved the classification of a cosmetic product, "Dr. Smyle Prickly Heat Powder," under either Heading 3003.10 or 3304.00. The department argued for classification under 3304.00, attracting more duty, while the Commissioner (Appeals) relied on a Delhi High Court decision and classified it under 3003.10. The Assistant Collector had initially classified it under 3304.00. The Tribunal confirmed the classification under Heading 3003.10 based on the Supreme Court's decision in a similar case.

Reliance on Delhi High Court decision:
The Commissioner (Appeals) had relied on a Delhi High Court decision in the case of M/s. Manisha Pharma Plasto Pvt. Ltd. v. Union of India to classify the product under Heading 3003.10. However, the appellant argued that the Delhi High Court judgment was limited to a different product, "Nycil Prickly Heat Powder," and not applicable to "Dr. Smyle Prickly Heat Powder."

Comparison of chemical compositions:
The appellant highlighted differences in the chemical compositions of "Nycil Prickly Heat Powder" and "Dr. Smyle Prickly Heat Powder" to support their argument for classification under Heading 3304.00. They pointed out variations in the percentages of key ingredients in the two products.

Pendency of appeal before Supreme Court:
The appellant mentioned an ongoing appeal before the Hon'ble Supreme Court in the case of Muller & Phipps (India) Ltd. v. CCE, Mumbai, related to a similar issue. This pending appeal was cited as a ground for challenging the classification of the product under Heading 3003.10.

Product classification as medicinal preparation or cosmetic:
The Tribunal considered whether the product could be classified as a medicinal preparation or a cosmetic. The packaging of the product, lack of prescription requirement, and promotional offer indicated that it might not be a medicament prescribed by a physician. However, based on the Supreme Court's decision in a related case, the Tribunal confirmed the classification under Heading 3003.10 as a medicinal preparation, not a cosmetic.

In conclusion, the Tribunal dismissed the appeal, confirming the classification of the cosmetic product, "Dr. Smyle Prickly Heat Powder," under Heading 3003.10 as a medicinal preparation, in line with the Supreme Court's precedent.