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TMI Blog2009 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department not only by producing evidence by the Department itself but also by relying upon the evidence produced by the assessee - E/2903-2904/2004 - 438-439/2009-EX(PB), - Dated:- 15-5-2009 - Justice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) REPRESENTED BY : Shri S.N. Srivastava, DR, for the Appellant. Shri Bipin Garg, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Since common question of facts and law arise in both these appeals as well as the cross-objections filed by the assessee, they were heard together and are being disposed of by this common order. 2. We have heard at length the learned Advocate for the assessee as well as the learned DR for the Revenue in these matters. We have perused the records. 3. Both the appeals arise from a common order passed by the Commissioner (Appeals) on 12-3-2004 in the matter of dispute pertaining to the classification of the products namely Brahmi Amla Oil and Ayur natural hair wash. In relation to the issue pertaining to the classification of the said products, two show cause notices came to be issued to the assessee, one on 15-5-1997 and another on 20- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the materials placed on record by the assessee clearly disclose the license issued by the Drug Controller which was issued pursuant to the satisfaction arrived at by the authorities in terms of the provisions of Section 3(a) read with the first schedule of the Drugs and Cosmetics Act, 1940 about the ingredients of the product which revealed the same to be ayurvedic medicament. 6. The dispute in the matter relates to the classification of the products manufactured by the assessee. While it is the contention of the Department that the products are cosmetics, the assessee insists the same to be ayurvedic medicines. It is settled law that in such cases the twin test approved by the Apex Court in Collector v. Richardson Hindustan Limited reported in 1989 (42) E.L.T. A100 = 2004 (9) SCC 156 and further reiterated by the Apex Court in Puma Ayurvedic Herbal Pvt. Ltd., v. Commissioner reported in 2006 (196) E.L.T. 3 (S.C.) as well as in the recent decision in CCE, Nagpur v. Shree Baidyanath Ayurved Bhawan Ltd., reported in 2009 (237) E.L.T. 225 (S.C.) has to be applied and followed. The twin test as approved by the Apex Court reads thus:- (i) Whether the item is commonly und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s strenuously argued on behalf of the assessee that the certificate of registration under the Drugs and Cosmetics Act, 1940 clearly disclose that the product is duly certified to be the Ayurvedic medicine under authoritative books. In that regard attention was drawn to the copies of those certificates and the title of the books placed on record. Attention was also drawn to the first schedule of the Drugs and Cosmetics Act, 1940, while contending that the title of the books clearly reveal that they bear the same name as disclosed in the said schedule. 10. At the outset, it is to be noted that the first schedule to the Drugs and Cosmetics Act, 1940 and list about 84 items under Part 'A' and 13 items under Part 'B', part 'A' refers to Ayurvedic and Siddha Systems whereas part 'B' refers to Unani Tibb system. The schedule is prepared in terms of Section 3(a) of the Drugs and Cosmetics Act, 1940. The said provision of law explains the expression "Ayurvedic, Siddha or Unani Drugs". It says that the ayurvedic, siddha or unani drugs includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied for the said product in Ayurveda Sar Sangrah, the common parlance test is not applicable. As a matter of fact, this contention is based on misplaced assumption that Chapter Sub-heading 3003.31 by itself provides the definition of Ayurvedic Medicine and there is no requirement to look beyond". 13. As observed above, perusal of the order passed by the lower authority apparently discloses a casual approach in the matter of classification and failure on their part to apply the twin test in the manner acquired to be applied while classifying the product. 14. Considering the view that we are taking in the matter, it would be pre-mature to refer to the various decisions sought to be relied upon on behalf of assessee as well as the Revenue. It would be appropriate to set aside both the orders and remand the matter to the adjudicating authority to decide the issue of classification afresh by applying the twin test and the observation made herein above. Needless to say that since the matter relates to the period prior to eight years, the authorities shall decide the same as expeditiously as possible after hearing the parties, and on analogies of the entire materials on record in prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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