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TMI Blog2004 (12) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff as confirmed by the Commissioner (Appeals) in the impugned Order 2. Shri B.L. Narasimhan, learned Advocate, submitted that the impugned product is an Ayurvedic medicine since the ingredients used have medicinal properties and it is used to prevent dandruff; that the impugned product is manufactured under a drug licence; that their claim is also supported by the Certificates produced by the Appellants from the medical practitioners, end-users and the traders; that thus in popular parlance also, the product is considered as an ayurvedic medicament. He relied upon the decision in the case of C.C.E., Calcutta v. Sharma Chemical Works, 2003 (154) E.L.T. 328 (S.C.) wherein the Supreme Court classified Banphool oil under Heading 3003.30 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter and not under doctors prescription would not lead to the conclusion that the product is not medicament. Alternatively he contended that Alma Lio is classifiable under sub-heading 3305.10 and not under 3305.99 of the Tariff as Sugandhi Dravya (perfume) is deliberately added to the impugned product; that thus the impugned oil is a perfumed hair oil correctly classifiable under sub-heading 3305.10 of the Tariff. Finally, he submitted that no penalty is imposable on the Appellants since the dispute relates to the classification of the product in respect of which necessary classification declaration claiming classification under sub-heading 3003.39 had been filed by them and thus none of the provisions of Rule 173Q of the Central Excise Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a medicament and that for being classified as medicament under Heading 3003, therapeutic or prophylactic uses must be the main uses of the product. Reliance has also been placed on the decision in Vasu Pharmaceuticals Pvt. Ltd. v. C.C.E., Vadodara, 1999 (111) E.L.T. 625 (T) wherein Trichup oil containing some Ayurvedic ingredients and advertised and marketed for application to, and nourishment of hair only has been classified under sub-heading 3305.99 of the Tariff and not as a medicament under Chapter 30. He also mentioned that even in Naturence Research Lab case, relied upon by the learned Advocate, products namely La Faire and Forest N Flower were held to be not medicaments as they had no main therapeutic or prophylactic use; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edients mentioned in the Authoritative text books on Ayurveda have been used in the manufacture of a product, would not make the product a medicament . The product should be mainly for therapeutic or prophylactic uses. This view is strengthened from Note 1(d) to Chapter 30 which provides that Chapter 30 does not cover Preparations of Chapter 33 even if they have therapeutic or prophylactic properties. Further Note 2 to Chapter 33 retains the products under Chapter 33 only as products falling under Heading Nos. 33.03 to 33.07 even if they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value. This was also the view of the Larger Bench of the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso prevents dandruff, cool head and nourish the scalp. The impugned product is nothing but a preparation for use on the hair having also subsidiary curative value. As per Note 2 such product remains to be classified in Heading 33.05 even if the same is held out as having subsidiary curative or prophylactic value. In Sharma Chemical Works case, Banphool oil can be used for treatment of a number of ailments which is not so in the present matter. The Certificates given by the Doctors and relied upon by the Appellants also do not go to show that the impugned product is having predominantly therapeutic value inasmuch as the Certificate given by Dr. K.J. Patil mentions that the ingredients strengthen hair and promote hair growth, prevent hair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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