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TMI Blog2004 (7) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings to revise the classification was initiated as per the Supreme Court judgment dated 30-3-95 in the case of Sri Baidyanath Ayurved Bhawan Ltd. The subsequent Ministry s circular F. No. 333/49/97 CR, dated 10-9-97 reported in 1997 (95) E.L.T. T-14 was issued relying on the Supreme Court judgment and Tribunal decisions in the case of M/s. Alpine Industries reported in 1997 (92) E.L.T. 53 (T), M/s. Richardson Hindustan Ltd., 1998 (35) E.L.T. 424 (T). As per Ministry s circular the Commissioners were directed to re-examine the assessments of products claimed to be Ayurvedic medicines under Ch. 30 so as to re-determine their classification under Central Excise Tariff Act, 1985. For the correct classification, the following facts were required to be kept in view :- (a) 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. (b) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat application of Kesini will make a gentle, nourishing protective hair leaving the hair bouncing and lustrous. There is no mention of any specific disease or aliment that can be cured by this Kesini. Thus even though the department has no case that any special cosmetic ingredient or synthetic/chemical substances are added to the product during its preparation, it is difficult to consider this product as a medicament; rather it is to be classified as a cosmetic or toilet, preparation satisfying the basic parameters mentioned in Chapter Note 2. (ii) Similarly, the label of the product Lavanya with the face of a woman is printed as a herbal facial mix . The details on the label reads indication- For the skin texture and facial glow. How to use - Mix 2 tsps of powder in unboiled milk or water and apply on the face. Keep for 2 hrs. For best results keep overnight . In this case also no cosmetic or synthetic substances are added. The product was not aimed at curing any ailment or disease. Thus, this product also cannot be considered as medicine. Instead the same would qualify as cosmetic or toilet preparation to be classified under Chapter 33. (iii) The product Bab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertised and marketed through their Depots/Agencies as cosmetic products. (D) Though the ingredients are admittedly natural herbs/plants, fruits etc. generally used in ayurvedic medicines having medicinal properties, and referred to in basic ayurvedic texts, all these 4 products are neither made as per any authoritative text nor are mentioned as such in any such books. Thus even though the 4 products are claimed as medicaments, the therapeutic values are not substantial and instead are only subsidiary in nature. Therefore, these products are presented for usage as goods of Chapter 33. Being ayurvedic medicine there is no necessity for a mandatory prescription from a physician or Doctor to purchase from the market. The specific period of usage and specific ailments for which to be used etc. are glaringly absent in the labels for all these products. Medicaments are normally prescribed in doses for a limited time and for specific conditions/ailments. The medicinal properties of the ingredients used are only shown in the formula claimed for approval by Drugs Controller. It has been repeatedly held that the Drug Licence cannot be determining factor for the classification of a product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he use is discontinued on attaining the desired effect. It is his submission that in usage, on price and dosage the impugned goods differs from cosmetics. He also contended that no expert opinion for classifying the goods as cosmetics have been obtained by the Department whereas the appellant had proved by producing the drugs licence that the goods are ayurvedic products. He relied on the judgment rendered by the Apex Court in the case of Naturalle Health Products Pvt. Ltd. as reported in 2003 (158) E.L.T. 257 wherein it has been mentioned that if ingredients as mentioned in authoritative ayurvedic text book are used and Drugs licence is also relied then the product is required to be treated as ayurvedic medicines. He further relied on the ratio of the following judgments : - (i) Herbal Products v. CCE, Calicut - 2002 (146) E.L.T. 126 (Tri. - Bang.) (ii) CCE, Coimbatore v. Pee Gee Pharma [2003 (155) E.L.T. 341 (Tri. -Chennai) (iii) CCE, Calcutta v. Pandit D.P. Sharma [2003 (154) E.L.T. 324 (S.C.)] (iv) Burman Laboratories Ltd. v. CCE, Indore [2003 (154) E.L.T. 661 (Tri.-Del.)] (v) CCE, Calcutta v. Sharma Chemical Works [2003 (154) E.L.T. 328 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) which is extracted, it is seen that :- (a) Kesini is a herbal hair wash powder. There is no doubt that ingredients are ayurvedic but even in terms of appellants own claim it is not a medicament but it is meant only to add a mild fragrance to the newly washed hair and remove the scalps therein. There is no claim of this item being a medicament for therapeutic, prophylactic or curative purpose. Therefore, it is a cosmetic and the classification adopted by the Revenue under Chapter 33 is correct one and is required to be confirmed. (b) Lavanya is a powder meant to improve the skin texture. It is not claimed that has got any prophylactic or therapeutic properties and merely because it has got ayurvedic ingredients it cannot be considered as medicaments unless it is shown that it has got properties in the therapeutic, prophylactic or curative in nature. Hence it has to be treated as cosmetic. (c) Firm up is an oil for massaging the breast which are under developed, under sized and hanging. It is not meant for any curative, prophylactic or therapeutic purpose for any ailment. Hence, it has to be treated as cosmetic. (d) Baby oil , as claimed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weak memory, hysteria, ammenesia, blood pressure, insomnia, etc. Likewise, the Delhi High Court in the case of Manisha Pharma Plasto Pvt. Ltd. v. Union of India held that the nycil prickly heat powder was a drug as it had curative properties and not a cosmetic item. The Tribunal in the case of Griffon Laboratories Pvt. Ltd. v. CCE, Bombay noted that paraminol cream was meant for treatment of skin by filtering out ultra violet B rays and it was to be used only on prescription by the Doctors. Therefore, the citations relied by the ld. Consultant are distinguishable as the Tribunal and the Apex Court have clearly held that the items have therapeutic, prophylactic and curative properties and the items are sold as medicaments under prescription. There is no claim of the appellant in the present case that the item is sold on prescription or it has got therapeutic, prophylactic or curative effect. There is no claim that the items are capable of curing any skin disease. Their own claim is that it is meant for massaging the skin to add a mild fragrance to the newly washed hair (Kesini Herbal Hair Wash Powder), to improve skin texture (Lavanya Powder), to tone up breasts (Firm up), for cuta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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