2006 (7) TMI 27

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..... of 30% ad valorem as per tariff rate and 10% effective rate as per notification 10/94, as contended by the Revenue, or an ayurvedic medicament under CET sub-heading 3003.30 eligible to exemption from payment of duty in terms of Notification 75/94? This is the issue to be determined in the above appeals. 2. In Appeal No. E/542/01, the proceedings commenced by issue of show cause notice dated 19-2-1998 proposing classification of Babool tooth powder CET sub-heading 3306.00 and not under CET sub-heading 3003.30 as claimed by the manufacturers in their classification lists for the period 1993-94 and1994-95, and proposing consequent recovery of duty of Rs. 5,62,033/- and proposing penal action, which notice was adjudicated by the Additional .....

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..... that Baidyanath Dant jan Lal (which is of almost the same composition as the disputed product) was a toilet requisite under Chapter Heading 33.06. The Supreme Court upheld the finding of the Tribunal that the product was understood in popular parlance as toilet requisite and that ordinarily, a medicine is prescribed by medical practitioner and it is used for a limited time and not everyday, unless it is so prescribed to deal with a specific disease, while Dant Manjan Lal was used by a common man daily to clean his teeth. However, as rightly pointed out by the learned counsel for the manufacturers, the requirement that in order for a product to be considered as a medicament, it should be prescribed by a medical practitioner and is to be use .....

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..... , was held to have satisfied the test of common parlance as a toilet requisite as seen from the judgment of the apex court in Shree Baidyanath Ayurued Bhavan Ltd. supra. However, we find that in the later decision of Vicco Laboratories cites supra, where the products in dispute were turmeric skin cream and vajradanti toothpaste and toothpowder, the Supreme Court has held that the burden of proof that a product is classifiable under a particular tariff heading is on the Revenue and must be discharged by proving that it is so understood by consumers of the product or in common parlance and this was not the ground on which show cause notice was issued to Vicco Laboratories, the notices could not be sustained, leaving it open to the department .....

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