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TMI Blog1997 (7) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... alore has been manufacturing and clearing MUKTA CHAMAK powder without obtaining Central Excise licence, without observing Central Excise procedure and without paying Central Excise duty. Officers of the Headquarter, Preventive Unit, paid a surprise visit to the factory, verified the records and recorded the statement of Shri V.R. Joshi, Managing Director of the appellant and Shri M. P. Kajrekar, a share-holder of the appellant and an Ayurvedic Physician. Show cause notice dated 9-12-1994 was issued to the appellant alleging that the product is tooth powder falling under Chapter Heading 3306 of 1985 Tariff and not Ayurvedic Medicine attracting Chapter 33 and hence dutiable. It was also alleged that appellant suppressed from the knowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lumn No. (2) refers to sub-heading 3003.30 of the tariff. Column No. (3) refers to the rate as Nil . The Notification exempts goods falling under sub-heading numbers specified in column (2) from so much of that portion of the duty leviable thereon as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3). If the subject goods attract sub-heading 3003.30, there is complete exemption from payment of duty. It is in this context that the appellant contends that the MUKTA CHAMAK powder attracts sub-heading 3003.30. 6. Chapter sub-heading 3003.30 takes in the following: - Medicaments including those used in Ayurvedic (Unani, Siddha, Homeopathic or Bio-chemical systems. Chapter Heading 33.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral or dental hygiene because it has special therapeutic value and is to be used only as indicated. It is unlike DANTA MANJAN LAL manufactured by M/s Baidyanath Ayurved Bhawan which is used daily for oral and dental hygiene. The Commissioner overcame this evidence relying on note to Chapter 33 of the tariff. He also relied on literature which claimed the product to be teeth whitener and the SSI Certificate which refers the product as tooth powder . 9. In Shree Baidyanath Ayurved Bhawan Ltd., Nagpur v. Collector of Central Excise, Nagpur - 1985 (22) E.L.T. 175 (Tribunal), the question was whether DANTA MANJAN was to be regarded as Ayurvedic medicine or as a toilet preparation under erstwhile T.I. 68. It was argued that the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect that although manufacturers of dentifrices claim ability to prevent dental decay and treatment of pyorrhea, the fact remains that dentifrices may be expected to perform only the principal function, the cleansing of teeth. Though some of the ingredients may have therapeutic properties in pharmacopial books, the compound Dant Manjan cannot be said to have curative power so as to make it effective for treatment of ailments. The ingredients themselves are not treated as medicines in common parlance though they may have been mentioned in Ayurvedic reference books. The certificates relied on have no value in the absence of evidence that the product is considered in common parlance as medicine. No evidence of shopkeepers or medical practiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification. 11. The SSI Certificate issued to the appellant describes the product as Ayurvedic tooth powder . The literature of the appellant emphasises the usefulness of the product as teeth whitener and stain remover . There is no evidence that the product is prescribed by medical practitioners as medicine to cure any disease. The ingredients may have therapeutic relevance but that does not make the product curative in common parlance. Once the product is accepted to be tooth whitener and stain remover , it has to be regarded as a toilet preparation or dentifrice notwithstanding the so-called caution printed in the container that it may not be used daily. 12. Our attention has been invited to Note (2) to Chapter 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the benefit of the Notification No. 32/89. 14. It is finally contended that the show cause notice is barred by time. The period of demand was 1989-90. Show cause notice was issued on 9-12-1994. The charge was manufacture of excisable goods without obtaining Central Excise licence or following Central Excise procedure and without paying duty payable, without issuing gate passes and without accounting involving violation of Rules 174, 9(1), 52A, 53, 173B, 173C and 173G of the Central Excise Rules, 1944. It was alleged that the appellant suppressed the fact of manufacture and removal of excisable product without filing declaration and without licence. This actually came to the knowledge of the department only on 5-12-1991 on which day the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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