2004 (12) TMI 92 - SC - Central Excise

Whether the respondent s products namely turmeric skin cream and vajradanti toothpaste and tooth powder are classifiable under Chapter 30 of the Central Excise Tariff Act or under Chapter 33 of that tariff? Held that - Although the adjudicating authority had found in the course of the hearing that the market survey indicated that the product in question was known as a cosmetic we do not go into the question as this was not the ground on which the show cause notice was issued. The show cause notices having proceeded on a misapprehension of the tests laid down in Shree Baidyanath s case 1995 (3) TMI 109 - SUPREME COURT OF INDIA the same cannot be sustained. The appeals are accordingly dismissed without any order as to costs. It will be open to the Department to take such tests if otherwise so entitled in respect of the products for the purpose of classifying the products under the appropriate tariff heading as they may be advised.

Summary

Issues: Classification of products under Central Excise Tariff Act - Chapter 30 vs. Chapter 33

In this judgment, the Supreme Court addressed the issue of classifying products under the Central Excise Tariff Act, specifically whether certain products should be classified under Chapter 30 (pharmaceutical products) or Chapter 33 (perfumery cosmetics and toilet preparations). The products in question were turmeric skin cream and vajradanti toothpaste and tooth powder for the period between October 1996 and June 1997.

The respondent's products were initially classified as a patent or proprietary medicine under Tariff Heading 14-E and later under Chapter 30 as pharmaceutical products. The appellant contended that the products should be classified under Chapter 33 as cosmetics, citing a previous court decision and specific tests for classification.

The court emphasized that a mere court decision is not sufficient to change the classification without a change in the nature or use of the product, or a fresh interpretation of the tariff heading. The decision in Shree Baidyanath's case was discussed, where the Tribunal considered the product's common parlance description as a toilet preparation, not a medicinal one. The court upheld the Tribunal's approach of considering the popular meaning of terms used in the Excise Act.

The court also noted that the Tribunal's rejection of the claim that a medicine is prescribed by a medical practitioner and used for a limited time unless for specific diseases like diabetes. The court affirmed this reasoning but did not establish it as the sole test for classification. Another case involving the classification of a medicated shampoo as a medicine was referenced to show the criteria for a product to be considered a cosmetic.

Additionally, the court mentioned Chapter Note 1(d) of Chapter 30, the impact of which may need to be considered in a suitable case. It highlighted a previous case where the Department's approach of classifying a product as a cosmetic solely based on not being sold by chemists or under doctors' prescriptions was disapproved. The burden of proof for classification lies with the revenue to prove how consumers understand the product.

Ultimately, the court dismissed the appeals due to the show cause notices being issued based on a misinterpretation of the tests laid down in a previous case. The Department was given the opportunity to conduct appropriate tests for classifying the products under the correct tariff heading.