9911796707
TMI Blog1996 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... cture and clearance of this product to the Central Excise Department. It filed on 28th April, 1992 a declaration to the Superintendent claiming the goods to be classified under Heading 3003.30 and claiming exemption from duty. Correspondence took place between the appellant and the department with regard to composition of goods. The department issued a show cause notice dated 8-10-1992 proposing classification of the product under Heading 3307.30 of the tariff and consequent recovery of duty [on] clearances from August, 1991. Penalty was also proposed. After considering the cause shown and hearing the assessee the Collector passed the order impugned in this appeal. He held the product to be classifiable under sub-heading 3303.30 as a bath p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accompanying it and the words used on the container both indicate its use as such a medicine. 3. He says that if the product is classifiable under Chapter 33 the benefit of Notification 140/83 would be available. It had been denied by the Collector only because of his view that it contained a brand name of other person who is not eligible for grant of exemption. This view is incorrect. The appellant s entire production was marketed by M/s. Bajaj Sewashram Ltd. and this fact was indicated on the container. He disputes the Collector s finding that these words used constitute a brand name or trade mark. He further argues that the demand in the present case is barred by limitation as the appellant made known to the department the fact of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed writing and therefore constitutes a brand name. Since the appellant did not file a declaration when it commenced manufacture in August 1991, it must be considered to have suppressed the fact of such manufacture. 5. The appellant has not cited any evidence to support its decision that ingredients of Shikakai bathing powder are found mentioned in Ayurvedic texts. Names of such texts have not been indicated and the texts in which its manufacturing formula has been prescribed have also not been indicated. 6. There is some reference in the letter dated 14-10-1993 of the Drugs Inspector, Udaipur to the department to say that the manufacturing licence have been given to the appellant for Ayurvedic medicine. The letter however, does not clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 of the Tariff. Therefore, the issue of a licence by the Drug Controller does not ispo facto render the product classifiable under Chapter 30. The letter of the Director leads one to believe that the product is not an Ayurvedic medicine but something similar or akin to it. We cannot, therefore, conclude solely on this basis that the product is classifiable under Chapter 30. 7. The appellant s claim that the product has been certified by Vaidyas to be an ayurvedic medicine is answered by the judgment of the Supreme Court in Shri Baidyanath Ayurved Bhavan Ltd. v. Collector of Central Excise, Nagpur Ors. - 1996 (83) E.L.T. 492 (SC) = 1996 (10) RLT 327. The Court held that in classifying Dant Manjan Lal tooth powder as toilet preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio of 1989 (42) E.L.T. 33 would not apply. The Tribunal in 1993 (67) E.L.T. 907 classified the Henna Shikakai powder sold in unit packing on labels indicating its use for the conditioning the hair under Heading 33.05 supports the department s stand. 9. The Note 2 to Chapter 33 provides that Headings 33.03 to 33.07 applies inter alia to products suitable for use as goods for these headings and put up in packing with labels, literature or other indication that they have used as a cosmetic or toilet preparation, or put up in a form clearly specialised to such use. The first requirement is satisfied in this case. The literature indicates the use of the product for conditioning the hair and scalp. Classification under Chapter 33, therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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