9911796707
TMI Blog1985 (7) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... otification, all drugs, medicines, pharmaceuticals and drug intermediates not elsewhere specified were exempted from payment of excise duty. The appellants treated these products, namely, Dant Manjan, Surma and Kajal as Ayurvedic drugs/medicines and did not pay any excise duty with effect from 1-3-1978 by taking benefit of Notification No. 62/78 C.E., dated 1-3-1978. 2. The Superintendent, Central Excise, Range V, Nagpur issued to the appellants a show cause notice dated 3-11-1981. A paragraph of this notice reads as under : And whereas it appears that the notice have been wrongly and wilfully taken recourse to Notification No. 62/78, dated 1-3-1978 which on its true and correct interpretation has no application to the said goods in question, as the said goods cannot be treated as Ayurvedic medicines, drugs, pharmaceuticals and drug intermediates because they are patently marketed as tooth powder, Surma, Kajal to the consumers as well as to trade. 3. In reply to the said show cause notice the appellants raised the following contentions :- 1. Since Ayurvedic medicines have been specified under Item 14-E of the Central Excise Tariff, even if by way of exclusion, they ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into service for the period from 1-3-1978 onwards; 15. No penalty is warranted in the circumstances of the case. 4. The Collector of Central Excise, Nagpur by his Order-in-Original No. 1/1981, dated 21-9-1982 rejected the contention of the appellants that these products, namely, Dant Manjan, Surma and Kajal are Ayurvedic drugs/medicines. It was ordered that these goods shall not be eligible for exemption from payment of duty admissible under Notification No. 62/78, dated 1-3-1978. The demand was, however, restricted to a period of six months only prior to the issue of the show cause notice dated 3-11-1981 under section 11A of Central Excises and Salt Act, 1944. 5. Not satisfied with the said order passed by the Collector of Central Excise, the appellants filed appeal before this Tribunal. 6. We have heard Shri D.B. Engineer, Senior Advocate assisted by Shri G.P. Vimal, Advocate and Shri Lachman Dev, Consultant for the appellants and Mrs. V. Zutshi for the respondent and have gone through the record. 7. As far as Dant Manjan and Surma are concerned, the parties adopted the same arguments which were advanced in Appeal Nos. 248/82-C and 106/83-C titled Baidyanath Ayurv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or medicine. It is a toilet requisite classifiable under item 68 and is not entitled to the benefit of exemption Notification No. 62/78, dated 1-3-1978. 11. Our findings are based on a decision of the Supreme Court in the case of Sarin Chemical Laboratory v. Commissioner of Sales Tax, U.P. (AIR 1971 SC 65) therein their Lordships of the Supreme Court held that tooth powder in common parlance is considered as a toilet article. In this judgment Supreme Court referred to the decisions of the Allahabad, Bombay and Madras High Courts. Allahabad High Court in the case of Commissioner of Safes 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 prophylectic 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, Cleansing teeth being an act of daily toilet, denti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 439/85-C) we hold that the Surmas in dispute manufactured by the appellants are classifiable under item 14E (CET) and are excluded being exclusively Ayurvedic drug. We set aside the order of the Collector of Central Excise, Nagpur regarding this product Surma . 16. Regarding Kajal there is no material on record to show and prove that this product is exclusively Ayurvedic drug. Kajal as is understood in common parlance is used for beautification purposes as it gives lustre to the eyes. Kajals are not Surmas and that is why they have been named separately. In the absence of any material available on record, we are not in a position to agree with the learned consultant for the appellants in holding that Kajals are patent or proprietary medicines falling under item 14E (CET) but excluded being exclusively Ayurvedic medicine. Neither in common parlance nor as per the definitions given in the Drugs and Cosmetics Act, 1940, Kajal can be termed as a drug or medicine. 17. Admittedly, this product Kajal has not been manufactured as per the formula laid down in any of the specified books of Ayurveda as mentioned in the First Schedule of the Drugs and Cosmetics Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
