2003 (3) TMI 102 - SC - Central Excise

Whether the product in question can be classified as a cosmetics and toilet preparation falling under Tariff Item 33.04 or as patent or proprietary medicine under Tariff Item No. 30.03 ? Held that - After verification of the entire evidence and the certificates produced on record as well as the report of the Chemical Analyser, the Tribunal rightly arrived at the conclusion that the product in question is oil used for massage and would be covered by heading 33.04. The oil is not used for cure of skin but is oil for massage and it takes care of the skin. Against assessee.

Summary

Issues: Classification of product as cosmetics or medicine under Central Excise Tariff Act.

In this judgment, the appellant-Company contended that their product, Ad-vitamin Massage Oil Forte, should be classified as a patent or proprietary medicine under Tariff Item No. 30.03, while the authorities classified it under Tariff Item No. 33.04 as cosmetics goods. The appellant's product was claimed to have medicinal properties due to containing vitamins and being used for massage to prevent ailments. The Tribunal upheld the classification under Tariff Item No. 33.04, stating that the product was primarily a massage oil for skin care with some marginal medicinal properties. The appellant appealed this decision (Issue 1).

The relevant tariff entries were examined, where Item No. 14E pertained to patent or proprietary medicines, and Item No. 14F referred to cosmetics and toilet preparations. Explanations II and III were added to Item No. 14F, specifying that it includes cosmetics with subsidiary pharmaceutical or antiseptic constituents or held out as having curative value. The reconstituted tariff post-1986 listed Tariff Items 30.03 for medicaments and 33.04 for beauty or make-up preparations. Chapter Notes clarified that the product in question did not qualify as medicaments but fell under cosmetics and skin care preparations (Issue 2).

The Court analyzed the nature of the product, emphasizing that even if it had some therapeutic properties, it was primarily used for skin care and massage rather than for curing ailments. Referring to a similar case, the Court applied the commercial parlance theory to classify the product based on its primary use and purpose. It was concluded that the product, being an oil for massage and skin care, was correctly classified under Tariff Item No. 33.04 as cosmetics and not as a medicament under Tariff Item No. 30.03 (Issue 3).

Therefore, the Court dismissed the appeals, affirming the classification of the product as cosmetics and skin care preparations under Tariff Item No. 33.04, based on its primary use and properties, despite having some marginal medicinal aspects. The judgment highlighted the importance of commercial parlance theory in determining the classification of products under the Central Excise Tariff Act, emphasizing the primary purpose and use of the product in question (Issue 4).