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TMI Blog2002 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... classification of the product under Chapter heading 3003.30. The findings of that order-in-original is extracted below : "Since there are 2 rival entries, we have to see which is the more appropriate one, we have to determine what is the principal function of the item as against its subsidiary property. To determine whether the product is a Siddha Medicine or not, we have the help of the chapter notes and judicial pronouncements on the subject. As per the chapter notes, the goods must have therapeutic or prophylactic use. As per the certificates of doctors, the hair tonic is effective for scalp strengthening of the hair roots, is effective in diseases like dandruff, ringworm and epidermosclerosis of the face and scalp and has a cooling effect, on the whole body. It was explained orally that in the Indian system of medicine, cooling the system is important in cases where there is extra heat - pitha - generated within the system. As per judicial pronouncements, the medicinal ingredients must find a place in authoritative texts of the Ayurveda/Siddha system and the goods must be known as such by those who deal in them. The said corporation have produced certificates and letters fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on hair attracting duty at 105%" "For the foregoing reasons, this application is filed for determination of the issue of classification of the said herbal hair tonic and consequently, confirming demand of duty on the same for the period April-September, 1988 which was dropped by the Assistant Collector." "It would be observed from the above that the Assistant Collector has gone beyond the direction of the Collector which is legally not permissible." "The cross-objection, filed by the respondents on the appeal of the department, is also silent with regard to the demand of duty in the department's appeal. It merely prays that the appeal of the applicant, may be rejected and the original classification under subheading 3003.30 may be upheld." "In view of the above, I set aside the order of the original authority and remand the case for reconsideration, after issue of a show cause notice to the respondents, as per law. In that, the lower authority would be free to consider any additional evidence which is relevant to the proceedings." (v) The above matter was taken up by the Assistant Commissioner for de novo adjudication. (vi) A detailed reply dated 30-5-2000 was submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hair as well." "Tampcol claimed that the items in question are certified by doctors to be useful in treating certain skin disorders of the scalp, preventing hair loss and gives coolness to the eyes and the body system. In this context, Tampcol also produced coies of the Supply Order of the Central Government Health Scheme, Medical Store Depot. While I agree that there may be occasions where the said Hair Tonic might have been prescribed by Doctors and even the CGHS might have indented for the said product, I wish to add that these factors do not by themselves answer the moot point for decision in this proceedings." "I confirm the classification of the Tampcol herbal hair tonic/new improved Tampcol herbal hair tonic and Tampcol Amla Thailam under Chapter 3305.10 as perfumed hair oil and order final assessment of duty accordingly." 3. The appellant had submitted a detailed appeal memorandum against the order-in-original. A further submission was made at the time of the personal hearing. Their main argument can be summarised as follows : (i) Therapeutic or Prophylatic properties have been detailed in the Sarabendra Siddha Maruthuva Sudar. This treatise is an authoritative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siddha medicaments; as the product is not sold under any name specified in the siddha text, the product is not a classical siddha medicament but still would be a patent and proprietary siddha medicament. Sub-heading 3003.30 covers both classical as well as patent or proprietary medicaments. The Tribunals have come to the conclusion that the ingredients and their effects as discussed in the authoritative books would be sufficient to classify the same as an ayurvedic or a siddha medicament and that the absence of a specific formula is not material. The Apex Court decision in the case of Amrutanjan Ltd. v. CCE - 1995 (77) E.L.T. 500 (S.C.) would approve the correctness of the Tribunal's decision. (ix) The lower adjudicating authority's reference to certain decisions in his order is not correct as the same has since been overruled in the case of Mistair Home Products v. CCE - 2001 (134) E.L.T. 488 which follows the earlier Delhi High Court decision in the case of Manisha Pharma Pvt. Ltd. v. UOI - 1999 (112) E.L.T. 22 (Delhi). It may also be mentioned that as early as 1988 the High Court of Andhra Pradesh had in the State v. Keduri Satyanarayana & Co. - 1988 (68) STC 233 (AP) held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugs. Siddha medicaments can be advertised while only the scheduled drugs cannot be advertised. (xv) The coconut oil is used as a medium and thus, the usage of the coconut oil alone would not move the final product from a medicament to a cosmetic; the therapeutic properties of the various ingredients in the mixture would clearly enable classification as a medicament. In the case of Panama Chemical Works where only 3% was active ayurvedic ingredients and the balance being liquid glucose, the Madhya Pradesh High Court held that the product in question was only a medicament - 1992 (62) E.L.T. 241. 4. I have considered the facts and submissions connected with the impugned classification of the product. I have perused the various affidavits and the Drug Controller's licence. It has been specified in the Drug Controller's licence that the labels and cartons should comply with the drug rules as also the provisions of "Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954". The drug certificate is in Form 26-D specifying that the product is a Siddha medicament. The certificate issued by Dr. K. Natarajan, Head of the Department of Siddha, Government Anna Hospital, specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise whether manufactured under a drug licence or not so as to redetermine their classification under the Central Excise Tariff Act, 1985. For the purpose the following facts may be kept in view : • The perception of the product in popular parlance, whether as medicaments or cosmetics/toilet requisite. The advertising, marketing and the manner in which the product is put up may also be taken into consideration. • It may be ascertained that the products claimed to be medicaments, should have substantial therapeutic claims which are not subsidiary in nature and the mode of prescription and use should be similar to that of a medicine/drug. It may be noted that medicaments are normally prescribed in doses, for a limited time, and for specific conditions/ailments. • The drug licence may be used as a guide for the classification of a product but not as the determining factor. The classification of a product under Chapter 30 or Chapter 33 may be done as per the Rules of Interpretation of the Central Excise Tariff Act, 1985 read with Chapter Note 1(d) to Chapter 30 and Chapter Note 2 to Chapter 33. This circular supersedes all previous circulars/instructions issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of statutory definition of ayurvedic medicines, scientific and technical aspect of the product is to be determined with the aid of 'definition' in Drugs and Cosmetics Act, 1940. Active ingredients conforming to standard Siddha texts are sufficient to treat the product as 'Siddha Medicine.' 12. It was held in the case of Ishaan Research Lab. (P) Ltd. v. Collector -2001 (137) E.L.T. 293 (Tri. - Del.) that products intended to cure or prevent ailments or diseases like scalp infections, eczema, psoriasis, pigmentation, foot infections, alopecia, etc., to be treated as 'Ayurvedic Medicaments' and classifiable under sub-heading 3003.30 of Central Excise Tariff Act, 1985. 13. The Hon'ble Tribunal in the case of CCE, Chandigarh-I v. M/s. Dabur India Ltd. - 2002 (144) E.L.T. 365 (Tri - Del) has held that : "Hajmola Tablets with 75% active ingredients as per Ayurvedic texts and 25% sugar for taste is classifiable as Ayurvedic Medicine under sub-heading 3003.39 of Central Excise Tariff Act, 1985 and not as edible preparation under sub-heading 2108.99 ibid"; 14. The Hon'ble Supreme Court Bench comprising Hon'ble Mrs. Justice Ruma Pal and Hon'ble Mr. Just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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