1999 (5) TMI 33 - HC - Central Excise

Summary

Issues Involved:
1. Classification of Nycil Prickly Heat Powder under Central Excise Tariff.
2. Validity of Circular No. 356/72/97-CX and order dated 5th November, 1997.
3. Interpretation of product classification based on popular meaning versus technical meaning.
4. Binding nature of the Harmonised Systems Committee (HSC) opinion.

Summary:

1. Classification of Nycil Prickly Heat Powder under Central Excise Tariff:
The primary issue in the writ petition was whether Nycil Prickly Heat Powder should be classified under Heading 30.03 (pharmaceutical products) or Heading 33.04 (cosmetics) of the Central Excise Tariff. The petitioner argued that the product, containing Chlorphenesin IP, is used for the prevention and cure of skin ailments, thus qualifying it as a medicament under Heading 30.03.

2. Validity of Circular No. 356/72/97-CX and order dated 5th November, 1997:
The petitioner challenged the circular and order issued by the respondents, which classified Nycil Prickly Heat Powder under Heading 33.04. The court noted that prior to these orders, the product was classified under Heading 30.03/sub-heading 3003.10 as a patent or proprietary medicine. The Central Board of Excise and Customs had previously agreed with this classification.

3. Interpretation of product classification based on popular meaning versus technical meaning:
The court emphasized the importance of the popular meaning attached to a product by its users, rather than its scientific and technical meaning. It was argued that consumers do not buy Nycil as a daily-use talcum powder but for treating prickly heat and other skin ailments. The court referenced similar cases, such as the classification of Boroline cream by the Calcutta High Court, to support this interpretation.

4. Binding nature of the Harmonised Systems Committee (HSC) opinion:
The court highlighted the significance of the HSC's opinion, which classified Nycil under Heading 30.03. The HSC's recommendation was based on the presence of Chlorphenesin IP in Nycil, distinguishing it from other prickly heat powders classified under Heading 33.04. The court found that the opinion of the HSC should be binding, given its role in harmonizing international trade classifications.

Conclusion:
The court held that Nycil Prickly Heat Powder should be classified under Tariff Heading 30.03 and not under Heading 33.04. The circular dated 20th November, 1997, and the decision of the Central Board of Excise and Customs were quashed. Consequently, the show cause notice dated 26th November, 1997, was also quashed. The court emphasized that the addition of medicinal ingredients changes the basic character of the product from a cosmetic to a medicament.