2010 (8) TMI 219 - AT - Central Excise

Cream - according to the respondents the product contained activated dimethicone, zinc oxide calamine IP and the Commissioner has compared with siloderm ointment classified as a medicament in the case of M/s. Neo Pharma since siloderm also contained the same three ingredients - major ingredients are same - uphold the decision of the Commissioner regarding classification of this product under CETH 30 - calderm lotion also other than stating that zinc oxide and calamine are meant for prophylactic use in skin care and they are never considered as medicament - no merit in the appeals filed by the Revenue and accordingly rejected

Summary

Issues:
Classification of products enmoist cream, calderm cream, and calderm lotion under Chapter 30.03 as medicaments.

Enmoist Cream:
The Revenue appealed against the Commissioner (Appeals) orders classifying enmoist cream as medicaments under Chapter 30.03. The Revenue argued that the product is a combination of white soft paraffin and liquid paraffin, not solely medicaments. They disputed the reliance on a previous Tribunal decision and contended that paraffin is a common product, not solely a medicament. The Revenue highlighted the absence of specific ingredients mentioned in the chemical examiner's report. The Advocate for the Respondent emphasized that products should be classified based on their use, not just medicinal properties. They presented evidence from doctors, professors, distributors, and wholesale dealers supporting the products' medicinal use for skin disorders. The Tribunal found that enmoist cream, containing ingredients from the pharmacopeia, could be classified as a medicament due to the lack of contradictory evidence from the Revenue.

Calderm Cream:
The Revenue challenged the classification of calderm cream under CETH 3304, arguing that the chemical examiner's report did not mention key ingredients like dimethicone and calamine. The Respondent's Advocate cited similarities with siloderm ointment, classified as a medicament, and presented evidence supporting the medicinal use of calderm cream. The Tribunal upheld the Commissioner's classification based on the shared ingredients with a known medicament and the lack of substantial evidence from the Revenue contradicting the medicinal use of calderm cream.

Calderm Lotion:
Regarding calderm lotion, the Revenue contended that zinc oxide and calamine, though used for skin care, are not considered medicaments. The Respondent's Advocate argued that the products were intended for skin disorder prevention and treatment, supported by certificates from medical professionals and distributors. The Tribunal noted that the Revenue failed to provide evidence contradicting the medicinal use of calderm lotion and upheld the classification under CETH 30. The Tribunal emphasized the importance of labels and market perception in determining product classification.

In conclusion, the Tribunal rejected the Revenue's appeals, affirming the classification of enmoist cream, calderm cream, and calderm lotion as medicaments under Chapter 30.03 based on the evidence presented by the Respondent and the lack of contradictory evidence from the Revenue.