1996 (12) TMI 82 - HC - Central Excise

Summary

Issues involved:
The classification of the product 'Boroline' under Tariff Item 14E or 14F, interpretation of statutory provisions post the Tariff Act of 1985, determination of 'Boroline' as a drug or cosmetic product, reliance on exemption notification dated 1st October, 1985, and the impact of previous settlement and appellate court orders on the classification.

Summary:
The appeal challenged the Trial Judge's order allowing the writ application regarding the classification of 'Boroline'. The Trial Judge, based on a judgment of the Allahabad High Court, concluded 'Boroline' to be a drug classified under Tariff Item 14E. The appellant argued that post the Tariff Act of 1985, 'Boroline' should not be classified under 14E. However, the Court found no change warranting a different classification. The chemical composition and usage of 'Boroline' supported its classification as a drug rather than a cosmetic product.

The appellant contended that 'Boroline' is a cosmetic preparation, not a medicine, citing the product label and composition. However, the Trial Judge determined 'Boroline' to be an antiseptic boric ointment, indicating its medicinal nature. The Court disagreed with the appellant's argument, emphasizing the previous judgment under the Drugs and Cosmetics Act, 1940.

Regarding the exemption notification, the appellant claimed that the respondent had availed of the exemption for 'Boroline' falling under 30.03, not 33.04. However, the Court noted that the appellate court's order directed clearance under 33.04, allowing the benefit of any applicable exemptions. The Court highlighted that the acceptance of the appellate court's order did not waive the right to contest the classification.

The appellant relied on a Tribunal judgment stating that an erroneous classification can be rectified, but the Court found no grounds for reclassification in this case. Another Supreme Court judgment emphasized interpreting statutes based on popular meaning, supporting the Trial Judge's conclusion that 'Boroline' is a medicine, not a cosmetic product.

Ultimately, the Court upheld the Trial Judge's order, dismissing the appeal. Any excess excise duty paid would be addressed under Section 11B of the Central Excises and Salt Act. The prayer for stay of the order's operation was refused.