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TMI Blog1985 (7) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ion list classifying this product (Marylon Medicated Shampoo) 100 ml under Tariff Item 14E (as patent or proprietary medicine). Along with this classification list, the appellants also produced a carton indicating in printing that the product is 'Marylon Medicated Shampoo' and it cleans, disinfects hair and controls dandruff. The ingredients of this product, namely, Benzalkonium Chloride, Cetrimide, Undecenoic Acid, D-Panthenol in a non-ionic base have also been mentioned on this carton. A sample of the product was drawn vide Test Memo No. 2, dated 12-12-1978 and the Chemical Examiner in his report dated 1-1-1979 opined as under : "The sample is in the form of pale yellow coloured, viscous liquid with agreeable fragrance. It lathers well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal under Section 35P(2) of the Central Excises and Salt Act, 1944, to be heard as an appeal. 5. We have heard Shri B.M. Mitra, Advocate along with Shri D R. Basu, Advocate for the appellants and Mrs. V. Zutshi, SDR, for the Department and gone through the record. 6. Shri Mitra, learned Counsel for the appellants argued that the product in dispute having its trade name as 'Marylon Medicated Shampoo' is a medicinal preparation and its ingredients are pharmacopoeal in nature. Benzalkonium Chloride Solutions B.P.C. is active against gram positive and gram negative bacteria and some fungi (including yeasts and certain protozoa i.e. Trichomonasvaginalis) as has been shown in the book Drug Evaluations 2nd Edition 1973 page 652 publis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 'Marylon Medicated Shampoo' (i.e. the goods in dispute) manufactured by the appellants has been considered by them as a drug and Drug Licence No. 870-M has been granted accordingly to the appellants for the manufacture of the said drug for sale. Shri Mitra pointed out that this product 'Marylon Medicated Shampoo' is basically a preparation for medicinal purposes other than toilet, not injurious to health in view of the licence under Drugs & Cosmetics Act, 1945 as granted. This product is considered as a drug and therefore, it should be classified under Item 14E(CET) as patent or proprietary medicine. Though it is named medicated shampoo, it is not a shampoo but a medicine which is being sold under the trade name of the appellants as 'Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t large as a shampoo. Even in the pamphlet issued by the appellants for this 'product, its mode of application has been shown as Shampoo'. How can it be said that it is a patent or proprietary medicine and not a shampoo ? She pointed out that the Board's decision is not applicable in the present case. In that case technical data has not been considered and the facts of that case cannot be made applicable to this case. She cited a decision of the Bombay High Court in the case of Subhash Chandarnishat v. Union of India and another (1979 E.L.T. J 212) in support of her contention that the correct principle of the interpretation of the items or entries occurring in the First Schedule to the Central Excises Act would be that these items or entri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee that it is a medicated product so it should be treated as a medicine cannot be accepted as correct. 13. Allahabad High Court in the case of Commissioner of Sales Tax, U.P. v. Sarin Chemicals (24 STC 406) held that tooth powder used for cleansing the teeth is an article of cosmetics or toilet requisites. In that case, the manufacturer had claimed medicinal properties for their products and this is what the Judges observed on the point : "........Some of them do possess some prophylactic and remedial properties but whether they do or do not possess the medicinal properties claimed by their manufacturers, the fact remains that they are used for dental cleanliness which is an essential act of toilet." 'Marylon Medicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or entries occurring in the First Schedule to the Central Excises Act would be that these items or entries should be construed not in the sense in which it is understood in technical matters or scientific laboratories, but in the sense which the people dealing in or commercially conversant with the items would attribute to them. Therefore, the meaning suggested by technical and scientific tests can never be preferred to the meaning gathered from the common parlance of the people in trade and commerce conversant with the subject-matter. 14. In common parlance and as per own showings of the appellants this product 'Marylon Medicated Shampoo' is used as a shampoo and is also known as shampoo. The mere fact that it has been described as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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