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TMI Blog1999 (8) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Ayurvedic Medicine. Therefore, the product was basically in conformity with Ayurvedic Principles. (b) As against the Deputy Chief Chemists report saying that the product had a pleasant odour, the notice have produced evidence in the form of a certificate of analysis from an independent Laboratory (M/s Ana Labs., Bombay) that it is free from any "Synthetic Smell" and has "natural odour" and had argued that vide Ministry's Tariff Advice No. 27/74 vide F. No. 105/1/73-CX-Central Excise-3, dated 25-11-1974 it had been laid down that such natural odour would not make for a perfumed hair oil. (c) The label on the bottle of the product clearly stated that it was useful for irritation in the eyes, insomnia, mental depression etc. also besides other details and it was recommended for use only at bed time. Therefore, the department had not been able to establish a preponderance of probability that the product was primarily for cosmetic use. (d) Drug Controller, D.G.H.S., New Delhi had in the case of the product Ramtirath Brahmi Oil manufactured by a unit in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor had also failed to appreciate the report of the Deputy Chief Chemist. It is clear from the report that the product in question has a pleasant report that the product in question has a pleasant odour and contains synthetic organic colour and the finding of the report had been accepted by the assessee. It is, therefore, not correct to hold that the hair oil in question is manufactured in accordance with the recognised text book on Ayurveda. (c) Collector had also failed to appreciate the scheme of classification adopted under H.S.N. even if hair oil in question has certain therapeutic and prophylactic properties, they would continue to be classified under Chapter heading 3305 for the following reasons : (i) Chapter Note 1(d) to Chapter 30 excludes preparation of Chapter 33, even if they have therapeutic or prophylactic properties from the scope of Chapter 30; (ii) Hair oil of the type, even though manufactured by using certain preparations which find place in Ayurveda, would be excluded from Heading no. 30.03 in terms of Chapter Note 2 to Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its correct classification would be under Tariff heading 14F(2) under the old Tariff and it will be in the Tariff heading 33.05 under the new Tariff. For Tariff Heading 33.05 Ld. JDR also takes support from Chapter Note 2 of Chapter 33 as also Chapter Note 1(d) of Chapter 30. Later Chapter, i.e., Chapter Note 1(d) excludes specifically the preparations falling under Chapter 33 and Chapter Note 2 of Chapter 33 specifically includes products suitable for use as goods of these Headings (i.e. Heading no. 33.03 to 33.07) and put up in packings, labels, literature or other indications that these are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents or are held out as having subsidiary curative or prophylactic value. Ld. JDR submits that Chapter Note 2 of Chapter 33 makes it clear that even if any goods falling under Tariff heading 33.03 to 33.07 have some pharmaceutical or medicinal qualities, they would still be classified under this Chapter so long as they are put up in packings with labels, literature or other indications that they are fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her plea of the ld. JDR, Sh. V. Lakshmikumaran, Ld. Advocate submits that mere addition of green colour in the form of a synthetic organic dye does not rob the product of its character as an ayurvedic medicine. For this proposition, he relies on 1996 (83) E.L.T. T 50-51 (CBEC Circular No. 196/30/96-CX, dated 3-4-1996). In this connection. para 3 & 4 of the Board's circular are reproduced below :- '3. The matter has been examined. There is no dispute that the medicaments remain ayurvedic medicines and are sold as ayurvedic medicines under generic name as stated in the standard text books even if preservatives or binding agents etc. are added but the question is whether in view of the existing conditions specified under the notification the concessional rate of duty will be available or not. A view has been expressed that as long as the ingredients are added in the ayurvedic medicaments which do not have any therapeutic value and the formulation is otherwise prepared as per the prescribed text books, it may not be proper to deny the benefit of full exemption to such of those ayurvedic medicaments from excise duty under Notification No. 75/94-CE. In this context, the Ayurvedic, Siddh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medicines, give an instruction that how the product has to be used. It indicates that a good head massage 10-15 minutes before bedtime at night ensures peaceful sleep. Ld. Advocate, therefore, submits that on the basis of label it cannot be held that it is a hair oil. He points out that label itself does not say that it is a hair oil; it only says "Tel" (Oil). On the scope of Chapter Note 2 to Chapter 33, ld. Advocate places reliance on Supreme Court's judgment in the case of BPL Pharmaceutical reported in 1995 (77) E.L.T. 485 (S.C.)]. He places reliance on paras 31 and 35 of the above said order. Another interesting argument taken by the Ld. Advocate is on the expression of tariff description in Tariff Heading 33.05. The description reads as - "Preparations for use on the hair". He submits that the preparations which would fall under Tariff Heading 33.05 are meant for use on the hair and not on the scalp. He submits that a glance at the label relied upon by the Revenue, clearly indicates that it is used on the head, i.e., the scalp and not the hair. It is unlike an ordinary perfumed hair oil or normal hair oil, which are used only on the hair which are mentioned in Chapter Note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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