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TMI Blog1989 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... fication list of another product described as Halls Mentholyptus Tablets claiming assessment of the same under Tariff sub-heading 3003.19 chargeable @ 15%. The ingredients of the Halls Icemint Tablets and Mentholyptus Tablets appear to differ in respect of only colouring material and flavouring agents. 3. The respondents, before the lower authorities, pleaded that they were manufacturing a product Halls Icemint Tablets under a licence issued to them by the Director, Indian Medicines and Homoeopathy and claimed that taking into account the nature of the ingredients used, the same was correctly assessable as Ayurvedic medicine at nil rate of duty. 4. The Assistant Collector, however, held the goods to be assessable under 3003.19 chargeable @ 15%. The Collector (Appeals), however, on appeal by the respondents, allowed their plea for assessment of the goods as Ayurvedic medicine under Tariff sub-heading 3003.30. His findings in this regard are as under: The point for determination is whether Halls ice Mint" Tablets are Ayurvedic medicine or P.P. Medicine. In the order, the Assistant Collector has stated that Director Indian Medicine and Homeopathy has issued licence for manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of the product under a licence issued under the Drugs and Cosmetics Act, 1940 does not ipso facto render the product classifiable as an Ayurvedic product under the Central Excise Tariff Act, 1985. Even otherwise their indication to show that the product is being manufactured in terms of the formulae described in the authoritative by Ayurvedic system of medicine specified in the 1st stage of the Drugs and Cosmetics Act, 1940. Also this product mentioned as in any of the authoritative books or....." (7) The product is freely sold by all general merchants without insistence on a physicians prescription. The label affixed on the product does not indicate any dosage/period of usage, toxicity, side effects, etc., which are essential for a drug. The product is used as an item of confectionery. (8) The respondent has not furnished any proof that the product is a medicine. Mere advertisement as an Ayurvedic Medicine could not make it as an Ayurvedic product. (9) The produce is manufactured by M/s. Warner Hindustan Ltd., which is a multi-national Company with its base in U.S.A. and it is inconceivable that an Ayurvedic Medicine would be manufactured by them as they are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. He pleaded that the menthol in the tablets which is being described as active ingredient as an Ayurvedic medicine was not made out according to the Ayurvedic principles and in fact this was of I.P. grade. He pleaded that the certificate of Dr. Rao states that the product was prepared as per Ayurvedic principles and nothing has been sp E.L.T. out as to what he means by Ayurvedic principle and the certificate is in very general terms. He pleaded that the certificate of Dr. Rao, produced before the Collector (Appeals) gives the purposes for which Icemint Throat Tablets were being used and sets out the various conditions it is said to treat without giving any basis. 8. He pleaded that the goods were assessable under Tariff Item 704.90 and in this connection, he drew our attention to the Explanatory Note (Vol. I) at p.133 Note (v) of the harmonized system of nomenclature on which the Central Excise Tariff is based and pleaded that throat pastilles or cough drops are covered under sub-heading 1704.90. The said Note (v) is reproduced, for convenience of reference as under: 17.04 SUGAR CONFECTIONERY (INCLUDING WHITE CHOCOLATE) NOT CONTAINING COCOA * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the appellants have claimed in their literature as to what conditions the tablets treat. 11. The learned Advocate could not throw any light in this regard. So far as the literature is concerned, he drew the attention of the Bench to the packing in which the tablets are sold. The packing describes the goods as Halls Icemint throat tablets with the following wordings: Cools and Soothes the Throat - Refreshes the Mouth. On the wrapper of the tablet, the following additional information is furnished: Podina 33 mg., Nilgiri Tailam 2.45 mg. approved colours Ayurvedic Medicine. On the carton in which tablets are sold, the following, further, endorsement is made: Halls Icemint combines time tested ingredients to provide cooling, soothing, refreshing feeling to the throat and mouth. 12. He could not show from any one of their literatures or even from the claims made on the individual wrapper or the carton in which the Icemint Tablets are packed as to which condition of the throat the Icemint Tablets were intended to treat. 13. He pleaded that they had evidence from the Physicians and also certificates from the consumers and also from the retailers regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the preparation of Kantha Sudhar Vati for disorder of the stomach and asthma. For the preparation of Shoolantak Balm, the following ingredients have been found to be used: WINTER GREEN OIL (Methyl Salicylate) 50 Parts Pudina (Menthol)(Pepperment Ke Phool) 10 Parts Euclyptus Oil (Nilgiri Tailam) 2-1/2 Parts Kajuputi Tel 2-1/2 Parts White Bees Wax (Saphed Mom) 20 Parts Lancline (Oon Ki Charbi) 25 Parts 17. He referred to the judgment of the Hon ble Supreme Court in the case of Leuco Plast [1988 (36) E.L.T. 369]. He pointed out that ratio of this decision has a bearing on this case so far as the application of the common parlance criteria is concerned inasmuch as the issue has been decided in that case in this context after taking note of the ingredients used. 18. The points that fall for consideration in these proceedings are whether un-product manufactured by the appellants are a medicine and if so whether it is assessable as a patent and proprietary medicine chargeable to duty @ 15% or as an Ayurvedic medicine chargeable to nil rate of duty. In case the same is not a medicine w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de was on the basis on any clinical trial done. This information, we may mention, is necessary as the appellants product is not formulated according to the formulations set out in any Ayurvedic Formulary or in any standard works recognised by the Central Council for Research in Ayurveda and Siddha or the Drugs Control Act. Apart from the fact that the certificate given by Dr. Rao is not based on first hand information and that the appellants could not furnish any information as to the competence of Dr. Rao to give a certificate. It is seen that Dr. Rao is a Professor of Surgery of ENT and he cannot be considered as a specialist in the field of medicine. The certificate which could be taken note of is the one issued by the competent authority which in this case could be only DGHS of the Government of India. 22. We observe that for any formulation to be considered as medicine, the same should be either recognised so in a standard Ayurvedic work or should be so proved by clinical trials or should be recognised so by an authority like DGHS. We observe that both sides have produced literature showing that in the standard recognised books of Ayurveda various formulations containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clyptus oil by itself or in combination with menthol in the quantities used in the tablets for is treating any condition of the throat. 25. We may observe that in case any product is marketed as medicine and is accepted as such then apart from the medicinal effect, it is supposed to have its dosage also prescribed. We find that no dosage has been prescribed for the medicine on the packings of the tablets nor any product literature has been produced before us in this regard. The appellants were specifically asked in case they were selling the product as medicine, whether they had any product literature in this regard. They could not produce any such literature. The appellants have not produced any evidence from any practising physician as to whether they have recommended Icemint Tablets as a medicine for any condition of the throat. They have not produced any evidence from the trade to show that these tablets have been marketed and accepted as medicine. 26. Both the sides cited the decision of this Tribunal in the case of Shree Baidyanath Ayurvedic Bhavan v. C.C.E., Patna and Another [1985 (22) E.L.T. 844]. 27. The learned JDR pointed that the Tribunal took note of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 33. The Revenue have pressed the Chapter Notes under Harmonised System of Nomenclature in support of this plea. 34. We observe that the Central Excise Tariff of 1986-87 is not based on the Harmonised System as cited by the Revenue and the goods will have to be assessed with reference to the provisions of the law as contained under the relevant Central Excise Tariff. 35. We observe that Chapter 17, specifically, excludes from its purview the products of Chapter 30. We have already held above that the appellants product is not a medicine falling under Chapter 30. Tariff Entry 17.04 covers sugar confectionary. The question is whether the product can be considered as confectionary as such. We observe that Icemint Tablets are claimed to be for refreshing the mouth and also for cooling and soothing the throat. These have aromatic or property of flavour imparted to these by menthol and euclyptus oil and the major content of the same is sugar apart from the colouring matter and other items as preservative. Like pepperment tablets which are sold as confectionery item, these tablets can be, therefore, considered to have the attributes of confectionary. However, even if the items are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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