2013 (8) TMI 467 - SC - Central Excise

Classification of goods under tariff heading no. 30.03 (medicament) - Moisturex - Care or cure , is the clue for the resolution of the lis arising in these cases. If the product by name Moisturex is held to be a medicament for cure, the decision goes in favour of the assessee and if the product is held to be one for care of the skin, the decision benefits the Central Excise Held that - Moisturex cream is prescribed by the dermatologist for treating the dry skin conditions and that the same is also available in chemist or pharmaceutical shops in the market. The cream is not primarily intended for protection of skin. The ingredients in the cream, the pharmaceutical substances do show that it is used for prophylactic and therapeutic purposes - Heading 33.04 dealing with beauty or make-up preparations and preparations for the care of the skin has specifically excluded medicaments - Having regard to the pharmaceutical constituents present in the cream Moisturex and its use for the cure of certain skin diseases, have been classified as medicament liable to be classified under the Heading 30.03 (medicament) Reliance is placed upon the judgment in the case of Alpine Industries vs. Collector of Central Excise, New Delhi 2003 (1) TMI 103 - SUPREME COURT OF INDIA Decided in favor of Assessee.

Issues Involved:
1. Classification of the product 'Moisturex' as either a medicament or a cosmetic.
2. Interpretation of relevant headings and notes under the Central Excise Tariff Act, 1985.
3. Consideration of pharmaceutical ingredients and their therapeutic or prophylactic uses.
4. Determination of the primary function of the product: care or cure.
5. Relevance of product availability without prescription in classification.

Issue-wise Detailed Analysis:

1. Classification of 'Moisturex':
The core issue is whether 'Moisturex' should be classified as a medicament or a cosmetic. The Tribunal ruled in favor of the assessee, classifying 'Moisturex' as a medicament, which the Central Excise appealed against. The Supreme Court upheld the Tribunal's decision, emphasizing that the product's pharmaceutical constituents and their curative properties make it a medicament.

2. Interpretation of Relevant Headings and Notes:
The Central Excise Tariff Act, 1985, under Chapter 30, deals with pharmaceutical products. Heading 30.03 covers medicaments, and Heading 33.04 deals with beauty or make-up preparations and preparations for the care of the skin, excluding medicaments. The Court noted that 'Moisturex' falls under Heading 30.03 due to its therapeutic uses, as defined in Note 2(i) and 2(ii) of Chapter 30.

3. Consideration of Pharmaceutical Ingredients:
The product 'Moisturex' contains Urea I.P., Propylene Glycol I.P., Lactic Acid I.P., and Liquid Paraffin I.P., all recognized as pharmaceutical constituents. The Court emphasized that these ingredients are used for therapeutic or prophylactic purposes, making 'Moisturex' a medicament. The presence of these ingredients was decisive in classifying the product under Heading 30.03.

4. Determination of Primary Function:
The Court distinguished between products meant for care and those meant for cure. 'Moisturex' is intended for treating dry skin conditions and other skin complaints like fissure feet and ichthyosis, indicating its primary function is cure, not care. The Court rejected the argument that 'Moisturex' is merely a moisturizing cream, emphasizing its therapeutic role.

5. Relevance of Product Availability Without Prescription:
The Court dismissed the argument that 'Moisturex' cannot be a medicament because it is sold over the counter without a prescription. Citing previous judgments, the Court reiterated that the availability of a product without a prescription does not preclude it from being classified as a medicament. The primary criterion is the product's use and the curative properties of its ingredients.

Conclusion:
The Supreme Court concluded that 'Moisturex' is a medicament, primarily intended for treating skin conditions and containing pharmaceutical ingredients with therapeutic properties. The product is classified under Heading 30.03 of the Central Excise Tariff Act, 1985. The appeals by the Central Excise were dismissed, affirming the Tribunal's decision.

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