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TMI Blog1999 (1) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... iz. 14-8-1987 and 15-9-1987. The case of the Department is that all Thailams are a native description for oily preparations made by native methods by natural herbs/flowers, roots of plants etc. and since the constituents of the disputed product are liquid paraffin, soyabean oil, arachis oil, isopropylmyristate, perfume and colour, it is not a Thailam. The lower authorities are also of the view that while all Thailams are bath oils, the converse is not necessarily true. The assessee s plea of redetermination of assessable value by deduction from cum-duty price charged by them on the basis of the declared price (which according to the assessees would be Rs. 12,05,314.20) has also been rejected by the lower authorities as unsubstantiated. 2. We have heard Shri M. Chandrasekharan, learned Sr. Advocate appearing along with Shri C. Hari Shankar, learned Advocate and Shri A.K. Madan, learned SDR. 3. We find that the Department s stand that the product in dispute is not a Thailam is based upon the judgment of the Hon ble Madras High Court in the case of Union of India v. M/s. T.S.R. Co., Kumbakonam reported in 1985 (22) E.L.T. 701 (Mad.) = 1985 ECR 1074 Madras. In that case the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, as the Thailams are intended for use for cooling the body as such. 4. The above judgments clearly recognise that all Thailams are a native description for oily preparations made by native methods from natural herbs, flowers, plants, etc. On the other hand, it is seen from the constituents of Olemessa Bath Oil that the product is not a Thailam within the meaning ascribed thereto by the Hon ble Madras High Court. The appellants have also not been able to show that the disputed product contains any medicinal qualities (Eucalyptus oil IP is an example of Thailam which has got medicinal qualities as seen from the label at page 110 of the paper book wherein external use for common colds, coughs, headache, pains etc. has been indicated on the label itself) or that it had the effect of cooling the body. The appellants have also not been able to show that the disputed product is commercially known and marketed as Thailam. Since the term Thailam has been judicially interpreted, there is no necessity of looking into dictionary meaning as held by the Hon ble Supreme Court in the case of State of Orissa v. Titagurh Paper Mills reported in AIR 1985 SC 1293. The other case law cited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared by them after availing exemption under Notification 385/86-C.E. as amended and calculation of the duty is to be levied at 105%. This plea has been rejected by the Assistant Collector as unsubstantiated. We agree with the appellants that the assessable value has to be redetermined by deducting the duty element from the cum-duty price, in terms of Section 4(4)(d)(ii) of the CESA, 1944, as held inter alia in the case of Seraikella Glass Works P. Ltd. v. CCE, Patna reported in 1988 (37) E.L.T. 452, Quality Printer v.CCE, Bombay reported in 1994 (73) E.L.T. 901 and in the case of Paharpur Cooling Toners Ltd. v. CCE, Calcutta reported in 1996 (86) E.L.T. 132. 6. In the result, the demand of duty by the authorities below is confirmed subject to its requantification as observed in the preceding paragraph. The appeal is disposed of in the above terms. Dated : 2-12-1996 Sd/- (Jyoti Balasundaram) Member (J) 7. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (Judicial), my views and orders in the matter are as follows. 8. Learned Counsel stated that the appellants commenced manufacture of Olemessa Bath Oil on 20-3-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g clarified at said hearing. The decision of Hon ble Madras High Court in the case of Union of India v. TSR Co. reported in 1985 (22) E.L.T. 701 had been mis-understood by the department, as could be seen from the language which was adopted in the show cause notice. It was the Department s own case that the appellants product is not gingelly oil boiled with herbs etc. If this was the case, as has been held by the Hon ble Madras High Court, it could not be considered to be a toilet or cosmetic preparation with the result that it would necessarily have to fall outside chapter 33.07. The notification cannot, in such circumstances, apply to such a product and would become otiose and redundant. 11. The use of the word `thailam in brackets would clearly show that it was descriptive and not restrictive in operation. The reference had been made before the A.C. to several dictionaries and literatures, specially pertaining to South India where the word `thailam is in vague to prove the case of the appellants. None of these was adverted to in the order of the A.C. The A.C. had wrongly distinguished the decision of Hon ble Supreme Court in the case of Union of India v. TISCO reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases. Reference may, in this connection, be made to the decision of Hon ble Supreme Court in the MRF case reported in 1987 (27) E.L.T. 553 where the method of such re-determination has been spelt out and explained. 14. Learned DR stated that the product though classifiable under the declared sub-heading No. 3307.30 is not entitled for the exemption available under Notification No. 385/86-C.E. dated 29-7-1986 because the said notification grants exemption only to a variety of bath oils namely `Thailams and not to all varieties of bath oils. The product `Olemessa Bath Oil though a variety of bath oil does not fall under `Thailams . The composition and method of preparation of `Thailams is altogether different as compared to the composition and method of preparation of `Olemessa Bath Oil . A `Thailam is prepared by boiling certain oils namely gingelly oils with natural herbs, flowers, roots of plants under an old system of Tamil preparations. The product `Olemessa bath oil does not incorporate any of these ingredients and its composition is as follows : (i) Light Liquid Paraffin 20% by volume (ii) Heavy Liquid Paraffin 20% b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her bath oils include thailams or thailams include bath oils. 20. In this respect, I find from the extracts from various types of literature and dictionary etc. and the photocopies of various labels of various products produced before us and cited by the learned Counsel that the word `thailam has been and is being used in various senses. In its widest or general sense, thailam has been equated with `Tailam in Sanskrit and `Oil in English but, from the examples given of such thailams or oils, its use appears to be confined to oils of plant origin or extracts made therefrom and the uses include to anoint the head or body ; And, thailams cover, inter alia, fragrant oils and oils for medicinal purposes as well (vide Tamil Nadu Laxicon Vol. IV Part I issued under the authority of the University of Madras). It, however, appears that this term is also used in a more specific sense in some parts of South India and there confined only to oils made from herbs, flowers and roots of plants etc. prepared by traditional (old) native method and used for applying before bathing i.e. in this sense, thailam cover only such preparation and not other types of bath oils. 21. In my opinion, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) are use-oriented entries. Therefore, it is from our point of view also unimportant as to how the product was prepared and whether it was used only on the body or both on body and head and all that was required to be seen is whether it is a bath preparation of a type covered by the notification in question or any other type of cosmetic or toilet preparation. 22. Insofar as the language of the notification is concerned, since it covers undoubtedly bath oils and Thailam has been mentioned in parenthesis, what is important for us to note is that it is undoubtedly an oil and in the nature of a bath preparation. In The Concise Oxford Dictionary of Current English Seventh Edition, `Parenthesis has been explained as under :- Parenthesis, word, clause, or sentence, inserted into a passage to which it is not grammatically essential, and marked off by brackets, dashes, or commas; round bracket, used for this; interlude, interval; put in beside. 23. The words or figures are generally, mentioned in parenthesis to clarify, amplify, emphasize, pin-point or focus. 24. In my opinion, the word `thailam has neither been used in the notification in its widest or broadest sense in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the learned Member (Judicial). 29.Heard Sri M. Chandrashekaran, learned Senior Advocate assisted by Shri C. Hari Shankar, learned Advocate for the appellants and none appeared on behalf of the Revenue inspite of notice. 30. The learned Sr. Counsel explained the background of the case in detail. He said that benefit in terms of Notification No. 385/86-C.E. has been denied on the ground that benefit would be available only to Thailams and the olemessa bath oil manufactured by the appellants cannot be considered as `thailam . According to the department, thailams are preparations of gingelly oil with natural herbs, flowers, roots of plants under an old system. He submitted that it is erroneous to assume that a thailam was necessarily prepared from gingelly oil etc. as made out by the Department and though no basis was given in the show cause notice assuming that the stand of the department was based upon the decision of the Madras High Court in the case of T.R.S. Company [1985 (22) E.L.T. 701 (Mad.) = 1985-ECR-1074] the decision was rendered in different context to consider the issue of classification whether Thailam prepared by mixing gingelly oil etc. etc. could be regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yristate 0.5% by volume (vi) Perfume - approximately600 ml. per 200 litres." 33. The Notification 385/86 exempts bath oils (thailams) falling under sub-heading No. 3307.30. It means bath oil containing thailam falling under Chapter 33 is exempted. In other words thailam must be used as bath oil to get exemption in terms of notification. It is not in dispute that item is in the nature of a bath preparation and cleared it as bath oil. Whether this bath oil is of thailam or not to be exempted in terms of notification is the limited issue. The word thailam was not defined in the statute. In the absence of definition of any word or expression in the Statute it was permissible to refer to the dictionary meaning thereof as it was held in the case of Star Paper Mills v. CCE -1989 (43) E.L.T. 178 (S.C.); State of Orissa v. Titagarh Paper Mills Co. Ltd., - AIR 1985 (S.C.) 1293 and Ashoka Foods Ltd. v. C.C. - 1989 (43) E.L.T. 409, referred to and relied upon by the learned Counsel on behalf of appellants. On going through the technical literature and dictionaries, it is clear that thailam is nothing but `oil . Thailam may be used as medicine or as bath oil de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication is to be construed strictly at one stage and liberally at another. In the first case, it observed that being an exemption notification, the benefit of it is available to only those medicines which fall under it. To that extent the notification has to be construed strictly. But once it is found that a medicine falls in the category of parenteral medicine then the benefit cannot be denied because it falls in category of those medicines which are applied locally. In the latter case, it held that exemption notification to be strictly construed only when a particular article is capable of falling in one or the other category specified in the notification but once it falls under the exemption notification it has to be construed broadly and widely. Once an article is found to have satisfied the test by which it falls in the exemption notification then it cannot be excluded from it by construing the exemption notification strictly or narrowly. In the instant case, since the Notification No. 385/86 exempts bath oil (thailam) and in view of the generic sense that thailam is oil and bath oil (thailam) falls under Chapter 33, there is no justification in denying the benefit in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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