2008 (6) TMI 165 - AT - Central Excise

Whether the products Toss (Strontium Chloride 10% w/w) and Toss-K (Potassium Nitrate B.P. 5% w/w) are classifiable u/sh 3003.39 Pharmaceutical products as claimed by appellants or SH 3306.10 Cosmetic or toilet preparation as claimed by Revenue in view of Chapter Notes, Labels, Literature, composition of the product, products cannot be equated with the toothpaste used as cosmetic - products are intended to be used for curing the disease so classifiable u/sh 3003.10 and not u/sh 3306.10

Summary

Issues Involved:
Classification of products Toss (Strontium Chloride 10% w/w) and Toss-K (Potassium Nitrate B.P. 5% w/w) under sub-heading 3003.39 Pharmaceutical products or sub-heading 3306.10 Cosmetic or toilet preparation.

Detailed Analysis:

Issue 1: Classification of Products
The key issue in this case revolves around the classification of the products Toss and Toss-K. The appellants claim that these products should be classified under sub-heading 3003.39 Pharmaceutical products, while the Revenue argues for classification under sub-heading 3306.10 Cosmetic or toilet preparation. The appellants assert that the products are medicated toothpaste with therapeutic properties, supported by evidence such as drug licenses, inclusion in the British Pharmacopoeia, and specific usage instructions for relief from dental hypersensitivity. The packaging also indicates "Medicated dental paste." On the other hand, the Revenue relies on a Chemical Examiner report and Chapter Notes of the Tariff to support their classification under sub-heading 3306.10. The Revenue emphasizes that the products contain ingredients typical of cosmetics and are packed as such.

Issue 2: Interpretation of Chapter Notes and Legal Precedents
The Tribunal analyzed the relevant Chapter Notes and legal precedents to determine the appropriate classification of the products. The appellants argued that the products do not meet the criteria for classification as cosmetics or toilet preparations under Chapter 33, citing the decision in BPL Pharmaceuticals Ltd. v. CCE, Baroda. The Tribunal highlighted the importance of the products being suitable for use as cosmetics and having specific packaging indications for such use, which the products in question lacked. The Tribunal also noted that the Chemical Examiner report did not conclusively establish the products as cosmetics or toilet preparations.

Conclusion
After thorough examination of the evidence, composition, labels, literature, and intended usage of the products, the Tribunal concluded that the products Toss and Toss-K are classifiable under Heading 3003.10 of the Schedule to the Central Excise Tariff Act, 1985, as pharmaceutical products. The Tribunal found that the products were intended for curing dental diseases and did not meet the criteria for classification as cosmetics or toilet preparations. Consequently, the demand of duty and penalty was deemed unsustainable, and the impugned orders were set aside, allowing the appeals with consequential relief.