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TMI Blog1988 (10) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... sively Ayurvedic, Unani, Sidha or Homeopathic. Twelve and a half per cent ad-valorem TI 14F was worded as follows : Cosmetics and toilet preparations not containing alcohol or opium, Indian Hemp or other narcotic drugs or narcotics, namely: One hundred per cent ad- valorem (i) Preparations for the care of the skin including beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods and tonics, face powders, baby powders, toilet powders, talcum powders and lipsticks. (ii) Preparations for the care of the hair - (a) Hair lotions, creams and pomades (b) Perfumed hair oils (c) Shampoos whether or not containing soap or detergent (iii) Shaving creams, whether or not containing soap or detergents. Explanation : Alcohol , Opium , Indian Hemp , Narcotic Drugs and Narcotics have the meanings respectively assigned to them in Section 2 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955." 3. In the Finance Bill 1985 (which later became Finance Act 1985) certain changes were effected in Tariff Item 14F and after the amendment the item read as follows : 14F. Cosmetics and Toilet Preparations Not containing Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is primarily a drug (P P Medicines defined in explanation I to 14E CET). This is because : (i) it contains a drug or medicinal preparation in oil form ; (ii) it is used for massage ; (iii) it prevents the ailment of rickets and treats the same ; (iv) it has a trade mark and symbol including that it is a proprietary. II. Item 14E was not amended and Explanation II modifies Item 14F only. For the purpose of this explanation the goods should be basically cosmetics and toilet preparations containing subsidiary pharmaceutical or antiseptic constituents or possess subsidiary curative or prophylactic value. III. The product was being considered to P P Medicine from 1961 and it continued to be so even after 1985. IV. The word Forte is used only to indicate fortified strength of the vitamins and occurs only in respect of medicines. V. The Product Manual issued by the appellants shows that vitamins A D are used for medical purposes. The vitamins are, therefore, drugs and the product is a medicine. VI. The product is sold as a drug and is recognised as such. VII. The product is manufactured under a licence by the Drugs Department should be treated as a drug even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a document prepared by the appellants themselves and there is no sanction to it by any authorised body. He finally pleaded that the product is primarily a massage oil and may be having marginal medicinal properties. Even so in view of the explanation II to 14F, it is classifiable under this item. 6. The learned Advocate in his rejoinder submitted that Item 14F before the amendment covered preparations for the care of skin like skin food, skin tonics, etc. from 1961 to 1985 the product was not treated as falling under TI 14F. He argued that if prior to the introduction of Explanation II the classification of the product was 14E, the same classification should continue after the explanation which did not alter the nature of the product. He referred to the documents filed in the paper book at pages 161 to 200 including cash memos and certificates and also certificates given by the Doctors at pages 57 to 63 and pleaded that the market knew this product only as a medicine. He submitted the fragrance attributed to the medicine is not material and emphasised that medicine penetrates body bringing to its medicinal benefits. 7. We have considered the arguments of both sides. We have car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in either of the headings, the question of choosing between what is said to be a general term and what is said to be a specific term does not arise. In this matter, the Department s stand is that the product is classifiable under 14F. 9. We have considered the appellants argument that the word Forte is used only to indicate fortified strength of the vitamins and occurs only in respect of medicines. This does not prove anything because the appellants have not shown that any one in this country cannot use the word Forte after mixing vitamins in a product. We are aware that vitamins are added in several cosmetic preparations, skin care lotions, etc. We do not agree that the mere addition of vitamins would render the product into a drug. Apart from such a view being against commonsense the judgment in Shree Baidyanath Ayurved Bhawan Ltd. (supra) is against any such possibility. The appellants argument that the product is sold as a drug and is recognised as such are based entirely on the affidavits they obtained and filed. But in the light of what we observed above viz., that the product has to be judged entirely in the light of the words in the tariff and not with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Calcutta. I always advise this massage (sic) oil for my paediatric patients . This certificate expresses the Doctor s satisfaction and advises the use of the massage oil. We take note that in this certificate the learned Doctor has cut out the word which appears to be prescribe and inserted the word advise in its place. The next two certificates on pages 191 and 193 show that the doctors prescribe it for vigour of the babies and children and for growth and increase of vitality of the babies. 16. Doctor Santra s certificate on page 195 shows that the doctor generally prescribes the massage oil especially for toning up growing babies and in cases of cerebral palsy and mental retardation. Dr. Sarkar on page 197 prescribes it for a lot of indications like retarded growth, rickets, dry skin, icthroysis and post-paralytic massage purposes. Dr. Tapas Kumar Konar says, in block letters, that he is prescribing the massage oil for growth and vigour of the babies and children. The next 3 certificates on pages 201,203 and 205 show the use of the oil in respect of children and babies. Dr. Agarwal at page 205 says, to whom it may concern, that he is using AD Vitamin oil in malnourished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne with possible skin care properties. 20. The appellants claim that the date of expiry indicates that it is a drug is equally unacceptable because while there is a law that drugs should indicate date of expiry, there is no such law that whatever indicates a date of expiry is a drug. 21. The appellants argument that the Department has not brought in any evidence whereas the appellants did was examined by us. The Department has the test report by the Chemical Examiner. At one stage of the hearing an impression was given to the Bench that this report was not made available to the appellants. However, on a perusal of the impugned order shows that it was not so and that the appellants had an opportunity to represent against what the report said. 22. The product is made of olive oil, and vitamins A D and a few other things. The Product Manual filed by the appellants is very interesting. Before we proceed to look at some details of this, we must record that this is a document prepared by the appellants and stenciled on paper and not printed. We took at a close look at this document and found the headings promotional strategy , detailing objective , and suggested detailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce a day to the baby after discharge from the nursery and half hour before bath. But no where in this part of the write-up the document mentions the disease listed on the carton or in the affidavit of the distinguished doctor. 24. We also note that the Product Manual is enriched by Pharmacology and Therapeutics of Vitamin A , Role of Vitamin E and Vitamin D and these are reproduced from a book Pharmacological Basis of Therapeutics, 5th Edition by L.S. Goodman and A.G. Iman. The chapters and page numbers are given in the document. Herein of course various diseases are mentioned. But these are mentioned with reference to the Vitamins A D and not with reference to the appellants product. We, however, keep in mind that the product contains the vitamins. 25. We have referred to the document at some length to show that virtues attributed to the preparation are in fact the virtues of the vitamins. A thorough reading of this Product Manual indicates that the product is a preparation for the care of skin with some marginal advantages emanating from the vitamins contained in the same. The test report dated 27.4.85 of the Chemical Examiner filed by the appellants themselves (pag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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