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TMI Blog1989 (12) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... fication under 3003.10. The Revenue thereafter filed this appeal before us. 3. Shri Sunder Rajan, the learned DR after referring entries in the tariff submitted that the product Mediker is a preparation for use on the hair. He drew our attention to the label appearing on every bottle of Mediker. This label is reproduced below: "Mediker ANTI-LICE TREATMENT DIRECTION FOR USE Shampoo hair with one capful of Mediker, Massage scalp for 3 minutes Rinse, Repeat. This usually eliminates Lice. For best results repeat shampooing 2 days later. WARNING The product is toxic if swallowed. Store far from food and drinking water. Keep away from children and pets. If it gets into the eyes wash affected area immediately with clean water COMPOSITION D-Phenothrin EP 0.23% W/V Triclosan E.P. 0.05% W/V base q.s. MEDIKER is the registered trade mark of Richardson - Vicks Inc. Manufactured by PROCTER & GAMBLE INDIA LIMITED BOMBAY 400011 Licenced Users of the Trademark Contents 45ml Mfg. Lic No. 526/A/AP Retail price not to exceed Rs. 9.60 (Local Tax extra) FOR EXTERNAL USE ONLY MADE IN INDIA Expiry date 2 years from the date of Mfg. Batch No. 8969 Date of Mfg. 12/88" The learned DR fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the mere indication of a warning on the label of the product would not mean that the product is not a cosmetic. He referred to Rule 148 of the Drugs and Cosmetics Rules in support of his argument. 7. The learned DR then took up the paper book filed by the respondents and dealt with each of the documents therein. He submitted that the affidavits filed by the people concerned are additional evidence filed before the Collector and, therefore, they should not be taken into account. He further argued that none of these books mention mediker as a cure for disease. Thereafter he referred to the publication "Manufacture of Beauty Products" (pages 110 to 112, SBP) and argued that anti-bacterial and anti-dandruff shampoos were considered as shampoos only. In this context the learned DR referred to an earlier decision of the Tribunal in the case of Sunny Industries v. Collector of Central Excise [1989 (39) E.L.T. 468] and submitted that the perfumed bath oils were therein held not to be medicaments. He also placed reliance on some other decisions: 1. Stamac Products, Calcutta v. Collector of Central Excise, Calcutta [1985 (22) E.L.T. 96 (Tribunal)] 2. Commissioner of Sales Tax v. CIBA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to paralyse the insect thereby killing the same. He explained that the louse always lodges itself on the scalp near the root of the shaft of the hair and with claw-like legs clamps itself on the scalp and thereafter sucks the blood. Application of water with force or with soap or shampoo does not yield the result of the removal of the lice from the head. Phenothrin alone can make the lice fall off from the head because of its paralysing effect. He submitted that since the skin (cuticulam) of the louse is similar to the structure of the human nail it has first to be made porous so that the active ingredient can penetrate and enter the louse and paralyse it. For this purpose a wetting agent is needed and this wetting agent is the surface active agent used in Mediker. Shri Lakshmikumaran explained that this would show that the surface active agent is nothing but a medium or a vehicle to convey the active ingredient phenothrin on to the louse. 10. D-Phenothrin being an insecticide, has to be effective on the louse but at the same time it must be safe to the human host of lice. Therefore, the learned Advocate explained, any insecticide preparation would contain only infinite or e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mediker it has been proved beyond doubt that it was most effective for treatment of pediculosis-meaning - infestation of lice. 13. Shri Lakshmikumaran further submitted that Chapter Note 1(d) to Chapter 30 excluded preparations of Chapter 33 even if they have therapeutic or prophylatic properties. Thus for application of Chapter 1(d) the product has to be classified under Chapter 33. Chapter Note 2 of Chapter 33, as pointed out by the learned Advocate simply states that the Headings 33.03 to 33.07 would apply to products suitable for use of goods of these goods of these headings put in packings with labels, literatures or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly intended for such use and includes products whether or not they contain subsidiary pharmaceutical antiseptic constituencies or held to be having subsidiary curative or prophylatic values. He submitted that it is not the case of the respondents that the product was known as cosmetics or toilet preparations. The product is known and supposed to be sold as anti-lice treatment only. D-Phenothrin is an active ingredient present in the product and its function is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34.02 excludes preparations containing surface active agents where the surface active function is either not required or is only subsidiary to the main function of the preparation (Headings 34.03,34.05,38.08, 38.09 and 38.23 as the case may be). The learned Advocate urged that all these analogies prove that the product should be considered as an insecticide if it is not considered to be a medicament. He submitted that in this case the competing entries would be 33.05, 34.02 and 38.08. The learned Advocate submitted that if 30.03 is ruled out, the product will undoubtedly merit classification only under Heading 38.08 on first principles as also according to the interpretative Rule 3(a) or 3(b) or 3(c) of the Rules of Interpretation of the Schedule. 16. We have considered the arguments of both sides. The question to be considered in this appeal is whether Mediker is used as a shampoo or even as medicated shampoo or whether it is used as treatment for lice. After going through the literatures on the subject placed before us (we shall be referring to it later) and after seeing the video film there is no doubt in our mind that the product Mediker is considered by all concerned as an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than under Heading 38.08. Before passing on, we would like to observe that the respondents having filed a cross appeal, they have a right to take up this argument. The learned DR's arguments to the contrary are not sustainable. 20. Can Mediker cure or prevent a disease? Only if it can do so it can be classified as a medicament. Much evidence has been placed before us by the respondents to prove that infestation of the lice on one's head is a disease and is given the name pediculosis. In this context we persued the following: 1. Merck Manual of Diagnosis and Therapy - 14th Edition at page 2045 specifically deals with a disease known as pediculosis. 2. "Physicians Desk Reference" 1987 edition, at page 801 describes the disease pediculosis, warnings, cure and treatment. 3. A certificate dated 22-6-1987 given by Drug Control Administration, Government of Andhra Pradesh makes it very clear that the product is used for the treatment of disease and thus is a medicament. 4. Handbook Non-Prescription Drugs, 8th Edition at page 509 describes the problem of pediculosis, infestation of head lice and problems relating thereto. 5. Andrew's "Disease of the Skin", Clinical Dermatology, Seven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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