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TMI Blog1987 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... whether or not they contain subsidiary pharmaceutical or antiseptic constituents or are held out as having subsidiary curative or prophylactic value. 3. In his order-in-original, the Assistant Collector classified the products Calaminol, Calamyl, Aquaminol and Calacream as cosmetics and toilet preparations made for the care of the skin under Tariff Item 14-F of the Central Excise Tariff but held that Histacalamine would continue to be classifiable under Tariff Item 14-E of the Central Excise Tariff as Patent or Proprietary medicine. When the party went up in appeal before the Collector of Central Excise (Appeals), he upheld the order of the lower authority. It is against this order that the appellant company is in appeal before us. 4. We have heard Shri S. Ray and Shri A.K. Sil, Advocates on behalf of the appellants and Smt. J.K. Chander, JDR on behalf of the respondents. 5. It is submitted by the learned Advocates that the appellant company are manufacturing different drugs and medicinal preparations, including injectable and life saving drugs such as transmission fluids, under a licence to manufacture drugs issued by the Drug Control Authority of the State under the Dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 211 (Tribunal). 12. Responding, the learned JDR reiterates the view taken by the lower authority. She states that basically the issue is whether the impugned products are primarily having, the properties of medicine or of cosmetics and toilet preparations used for the care of the skin. It is pointed out that Calamine I.P. is contained in Calaminol and Calacream up to 5% only, and in Calamyl and Aquaminol up to only 10%. It is submitted that Calamine lotion and preparations thereof are meant to be protective and not curative or preventive, and the use of Calamine in such small proportion cannot make the products medicines or drugs. It is further submitted that the manufacturer s pamphlet covering the Calamine range of products describes them as meant for protection of skin from sunburn, roughness, cracks and defatted condition. It is conceded that while classification of a product under Central Excise Tariff cannot rest on the basis of advertisements but such advertisements do help identify the nature and character of the products. 13. The learned JDR emphasises that some of the ingredients in the products may be medicinal and mentioned in some pharmacopoeia, but these ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a piece of cotton wool three times a day or more frequently if the skin is irritable or as advised by the physician. (iv) Calacream : A soothing and Astringent cream in Lanolin Base -Gently rub Calacream on the effected area twice a day or more frequently for a quick relief. Composition : Calamine IP 5% w/v in washable cream base. Use calacream to have an instant soothing effect in sunburn and to keep the skin soft and healthy. (v) Histacalamine : Calamine with- antihistaminic agent. Calamine IP 5% Chlorpheniramine Maleate USP 0.4%. Indications - indicated in urticaria, eczema, sunburn etc. or allergic dermatitis of any kind. Application : Apply locally twice or thrice daily or as directed by the physician. 16. The essential question for us to consider is whether the impugned products are cosmetics and toilet preparations under Tariff Item No. 14-F; Sub-item (ii) which deals with preparations for the care of the hair and Sub-item (iii) which covers shaving creams, have to be straightaway ruled out. What survives for consideration is whether they are classifiable under Sub-item (i) as preparations for the care of the skin. 17. It is seen that the notice to show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ophylactic use, cannot be classified as drugs or medicines. At the same time, it is equally true that drugs and medicines, which incidentally may be useful also in the protection or care of the skin can hardly, because of their latter attribute, be classifiable as cosmetics or toilet preparations. 21. The argument in regard to lectocalamine is self defeating. Firstly, it is not shown that the impugned products are identical to lectocalamine or are of the same variety. Secondly, while it is known that lectocalamine is widely used, sold and known as a cosmetic preparation, it is not at all shown by any evidence referred to in the orders of the lower authorities, or any evidence produced before us by the department, that the impugned products are used sold or known as cosmetics. 22. The Order-in-Original refers to the pamphlet covering the calamine range of products stating that the products afford protection of skin from sunburns, roughness, cracks and defatted conditions and comes to the conclusion that these are properties of cosmetics preparations used for the care of the skin. We, however, observe that the Assistant Collector has chosen to extract from the catalogue certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what has been discussed above this is not supportable, as, in the first instance, it has not been shown that the items in question are known, sold or used as cosmetics and toilet preparations. 28. The appellants have produced invoices to show that large supplies are made to Hospitals and that these are prescribed by the Doctors for the ailments indicated. Nothing that has been said before us on behalf of the Department refutes this claim. 29. We have considered the case law cited by the learned JDR. The decision of the Madhya Pradesh High Court in the case of Shri Sadhna Aushadhalaya related to hair oil manufactured by the assessee and the claim was that, it should be treated as a medicinal preparation and not as a toilet article. It would be seen that the product in question was undoubtedly an hair oil, a toilet item. According to the decision in that case the product had to be considered as per common parlance and commercial use as a toilet article in spite of the fact that it was an Ayurvedic preparation. In the matter before us, on the other hand it has not been shown at all that the item is a toilet item or a cosmetic. 30. In the two cases of J.L. Morison Surgichem ..... 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