9911796707
TMI Blog1999 (4) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... r declaration for the years 1995-96, 1996-97 classifying the same under sub-heading 30.03 and they were duly approved by the department without any objection. All the ingredients used in the TRICHUP OIL are ayurvedic in nature and are specified in ARYABHISHAK which is a standard ayurvedic book. 3. A show cause notice dated 1-8-1987 was issued to the appellant by the Range Superintendent seeking to classify the product under sub-heading 33.05 on the ground that TRICHUP OIL is nothing but hair oil and it is marketed as herbal hair tonic. It was also stated in the show cause notice that though the product may have therapeutic and prophylactic properties, these are subsidiary products as the product was being marketed as herbal hair tonic. A reply dated 23-8-1987 was filed inter alia mentioning that the oil has found the characteristics, namely preventive, protective, curative and nutritive. The medicament was used as a combined therapy basically for treatment of diseases of human hair. The medicament is generally prescribed by physicians and medical practitioners and generally available with chemists in medical stores. It has got prevention and curative value, and therefore the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. - 1990 (47) E.L.T. 658 para 21. 5. As against this, learned DR G.B. Yadav, while reiterating the grounds mentioned in the impugned orders, states that the product literature or the pamphlet containing the literature does not enhance the case of the appellants. The literature says that it should be wash dry hair to apply the TRICHUP OIL and massage it for a minute. 6. We have considered the rival submissions. The question involved in this case is whether the product is P or P medicines or cosmetics. The product is TRICHUP OIL which consists of the following ingredients : Name of Ingredient Reference Qty. Sesame indicum (til) oil Aryabhishak Edn.18 P.No.252 80% Cocos nucifera (tranraj) oil Aryabhishak Edn.18 P.No.285 20% MADE SIDDHI WITH Eclipta alba (Bhringraj) Aryabhishak Edn.18 P.No.325 1% Emblica officinal is (Vrushya) Aryabhishak Edn.18 P.No.100 1% Indigofera tinctoria (Nilpushpa) Aryabhishak Edn.18 P.No.202 1% Contella asiatica (Mandukparni) Aryabhishak Edn.18 P.322 1% Cyperus rotundus (Nagarmoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical prescription and used as a medicine. (h) Selsun was not a medicated shampoo, which was recommended as conditioners . with subsidiary medicinal effect. Selsun was on the contrary being recommended by physicians. (i) Variazus standard books and treaties such as (i) The pharmacological Basis of therapeutics by Goodman and Gilman (ii) Harry s Cosmeticology referred to Selsun as a drug. (j) It was being marketed as a Patent or Proprietary medicine through Registered Pharmacists who hold valid drug licence, and not by any dealer, like other shampoos. (k) Abbott s literature referred to it as a drug and such literature was addressed to physicians, also the label on the container mentioned that the product was to be used as directed by physicians. (l) Affidavits of leading doctors established that Selsun was being manufactured for use as a drug. (m) That the Excise Department had made inquiries from the trade and found that other shampoos like Clinic, Tata, Halo etc. were much cheaper and that their advertisement campaigns were to leave the hair silky, soft and healthy whereas Selsun was not so advertised. On the contrary there are precautions in use mentioned." Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Richest natural source of vitamin C. This page contains in addition indications with regard to use and composition. The literature is stated to be for medical professionals use only . Ground nine in the grounds of appeal relies upon this pamphlets as evidence that the product is used for scalp infections and other disorders. There is a reference in paragraph 7(2) of the reply to the show cause notice to literature indicating the use of this preparation on the scalp which are stated to have been enclosed in the annexure. However, the annexures to the notice have not been enclosed in the appeal. It is therefore not possible to say that this particular piece of paper was produced before the Assistant Commissioner. The appeal to the Commissioner (Appeals) says in ground (e) and (g) that the product is applied in the scalp. However, there is no reference to any such literature. 10. Now there is an inconsistency between what is stated in this brochure, and the carton in which the product is packed. The carton directs gentle massage on dry hair . It does not say a word about the application on the scalp. The document at Exhibit M stated to be for use by medical professionals. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d tanraj oil. If that were to be so, how the other ingredients are having any effect on the final product. In the B.P.L. Pharmaceuticals Ltd. case at para 34 it has been held as follows :- Another reason given by CEGAT is that Heading 33.05 uses the word Preparation for use on the hair" and therefore the product in question can be brought under the said heading. The Tribunal forgets that the product in question is intended as a medicine for curing the disease `Tinea Versicolor and as such applied to the skin wherever necessary apart from curing dandruff by applying on the scalp." (Emphasis supplied). In this case the product cover shows application as gentle massage on dry hair and does not speak anything of application on the scalp or on skin which is the case in B.P.L. Pharmaceuticals Ltd. case. Apart from that, in the said case it has been found in para 3 of the judgment that the literature is sent only to physicians for their recommendations to their patients and the product is not available in the departmental stores and only with chemists who have licence under the Drug and Cosmetics Act to sell the same. In our view this is not the case here. Nowhere our attention was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Tribunal in the case of M/s. Alpine Inds. v. C.C.E., Delhi - 1997 (92) E.L.T. 53 (T). The medical properties claimed are very minor and in common and trade parlance the product is neither known, recognised, bought and sold as medicine for prevention/cure of diseases but it is meant for cure of the hair. From the evidence on record, I find that Trichup oil cannot be considered as ayurvedic medicament. It is admittedly a product meant for use on the hair. However, it is neither a perfumed hair oil nor hair fixture and therefore it appropriately gets covered in the category of other under sub-heading 3305.99 of the Schedule. The classification, proposed in the SCN is appropriate and therefore I hold that Trichup oil is classifiable under Chapter 33 Heading 33.05 and sub-heading 3305.99. I therefore pass order accordingly." As found in the earlier portion of this judgment the product is advertised and sold out to be nourishment only to the hair and it is not advertised for application on the body only. Moreover the appellants have not proved by any positive evidence that medical practitioners have prescribed the products and some patients have used this product and g ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
