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TMI Blog2018 (2) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... ember (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Shri M.V.S. Prasad, Advocate for the Appellant. Shri P.S. Ghoush, Ganeshwar (ARs) for the Respondent. ORDER These Appeals involving same issue and dispute of units belonging to same Appellants are directed against following Order Nos.40/2012/Adjn. Dt. 27.05.2013, 86/2013 Ajdn. Dt. 31.10.2013, HYD-EXCUS-002-COM-044-14-15 dt. 30.03.2013, HYD-EXCUS-002-COM-0316-17 dt. 31.05.2015, HYD-EXCUS-004-COM-018-14-15, HYD-EXCUS-004-COM-042-15-16 dt. 16.10.2015 and HYD-EXCUS-04-COM-028-16-17 dt. 07.09.2016. hence all the appeals are taken up together for disposal. 2. The relevant fact that arises for consideration are that the appellant M/s. Aswini Homeo Pharmacy and Ayurvedic Products Pvt. Ltd. (previously known as Aswini Homeo Pharmacy) are engaged in the manufacture of product viz. Aswini Homeo Arnica Hair Oil (AHAHO) in their units located at Moosapet Maheshwaram and Bala Nagar. The Appellant has classified the said produce as Medicament falling under chapter sub heading No.30039014 and were claiming concessional rate of duty under Notification No.18/2012-CE dt. 17.03.2012 and other analogus notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the label, common parlance and decisions of Hon ble Supreme court in matter relating to determination whether a product is a drug or medicament or cosmetic held that the good are medicines and not cosmetics. The Advance Ruling Authority of Commercial Taxes, govt of Tamil Nadu also held the product to be a homeopathic for the purpose of TNVAT Act, 2006. He also submits that since 1994, the goods were held to be medicine and was examined four times by different officers including two Commissioners (appeals) and sub-ordinate officers. He submits that the issued involved of hair oil being medicament as squarely covered by the Tribunal decision in case of Bakson Homeo Pharmacy (P) ltd Vs CCE, New Delhi 2001 (136) ELT 485 (Tri, Del). He submits that there is no change in tariff act / ingredients or process of manufacture to revise the classification of goods in question, which was settled by the previous order. He submits that the goods even after change in tariff structure would remain classified under Chapter 30 since it a medicament. He submits that only for the reasons that the goods are in retail packing or mention of hair oil cannot mean that the goods are out of chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease i.e alopecia or insomnia, the goods do not get categorized as non-medicines. Nothing was brought to our notice that it is mandatory that to fall under the category of medicine or to merit classification under chapter 30, each medicine should mention the technical or medical name of all diseases for which it is prescribed as the same is very absurd preposition which would make all medicine to be out of the purview of chapter 30. The label clearly indicates that the goods in question are Homeopathic medicine falling under schedule K and for treatment of hair loss, loss of sleep and other ailments. It is not necessary that it should mention the medical name of such disease. We find that the label of the product nowhere promotes the goods in question as only for Hair, falling into category of cosmetic or toilet preparations. It does not indicate that it beautifies the hair or enhances the beauty. It is not even perfumed. There is no indication on the label of the product to publicize it as Cosmetic product neither it is known in market as cosmetic product in common pariance. The label of the product clearly show the different conditions i.e ailments for which is used add a nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas a medicinal product or medicament is meant to treat some medical condition. It was also held that merely because a product is sold not under a doctor s prescription, the same does not cease to be a medicament. In bother these cases, it was held that minimal presence of medicinal element does not detract the product from being classified as a medicament. To quote : 20. It will be seen from the above definition of cosmetic that the cosmetic products are meant to improve appearance of a persons, that is, they enhance beauty. Whereas a medicinal product or a medicament is meant to treat some medical condition. I may happen that while treating a particular medical problem, after the problem is cured, the appearance of the person concerned may improve. What is to be seen is the primary use of the product. To illustrate, a particular Ayurvedic product may be used for treating baldness. Baldness is a medical problem. By use of the product it a persons is able to grow hair on his head, his ailment of baldness is cured and the persons s appearance may improve. The product used for the purpose cannot be described as cosmetic simply because it has ultimately led to improvement in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in small quantities, is to be branded as a medicament. 8. In case of CCE, Rajkot v. ban Labs Pvt. Ltd. 2009 (236) ELT 542 (Tri), the Tribunal held that the oil with ingredient specified in the authoritative book and manufactured with licence from Drugs control Authority are classifiable as ayurvedic medicine under sub-heading 3003.99 of Central Excise Tariff and not as hair oil under sub-heading 3305.99. The relevant portion of the order are as under :- 3. By taking the above facts and circumstances and the Larger Bench decision of the Tribunal in the case of Himtaj Ayurvedic Udyog Kendra v. CCE, Allahabad - 2002 (139) ELT 610 (TRI-LB) he has held the goods to be ayurvedic medicine. 4. As against the above we find that the Revenue in their grounds of appeal has again reiterated the same stand that the product cannot be considered to be a medicine inasmuch a medicine is always prescribed for a limited period to cure a particular disease. Further, there is no mention of dose or doses to be directed by the physician. As such they have contended that it cannot be held to be ayurvedic medicine. 5. We find that all the above submissions were raised by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as hair oil. It is not disputed about the fact that the product is made of four Homeopathic medicines as ingredients namely Arnica Mount, Cantharis, Pilocarpin and cinchona and is used to treat the hair loss, insomnia, dandruff, headache and other ailments. It is manufactured under Drug Licence issued under rule 25 C of Drugs cosmetic Rule 1945 and in terms of rules 85D by the Director, Indian Medicine Homeopathy. The licence has been renewed from time to time by the Addition Director Drug Controller (Homeo), Department of Ayush, Government of Telangana State. Even as per analysis report Drug Controller, Department of Ayush the product is medicine. The product is covered by serial no. 35 of Schedule K of Drugs and Cosmetic Rules (Homeopathic Hair oils having active ingredients upto 3X potency) and the said schedule covers only drugs and not Cosmetics. The product has already been held to be Drug by the Hon ble Andhra Pradesh High court in reference to APGST as well as Commercial taxes. The Advance ruling authority of Commercial Taxes, Government of Tamilnadu for the purpose of TNVAT Act 2006 held that product to be a homeopathic medicine. We find that even before the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e obtained by the assessee under the Drugs and Cosmetics Act, 1940, itself mentioned that it is a licence for ointment and cream for external application as a non-pharmacopoeia item whereas in the present case the product is registered as Homeopathic Medicine by the Addition Director, Indian Medicine and Homeopathy Department, Government of Andhra Pradesh. Even the Hon ble High court of Andhra Pradesh held the product to be falling under the category of Drug and Medicine and is sold as medicine. The ratio of judgment in case of CCE Vs. ZANDHU PHARMACEUTICAL WORKS LTD. - 2006 (204) E.L.T. 18 (S.C.) is also not applicable as the product label clearly show the product as Homeopathic medicine. The Judgment of Hon ble Apex Court in case of Sujanil Chemco Industries Vs. CCE, Pune - 2005 (181) ELT 206 (SC) and Tribunal order in case of Bakson Homeo Pharmacy (P) Ltd. Vs. CCE, New Delhi - 2001 (136) ELT 485 (TR-DEL) are absolutely applicable to the present case in view of our above findings and we do not find any reasons to differ with those decision. 10. We also find that the adjudicating authority at the one hand had held that the classification done before amendment in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it was held that Merely because there is some difference in the tariff entries, the product will not change its character. Something more is required for changing the classification especially when the product remains the same. In the present appeals the product has remained same and the classification issue stands decided in favour of the Appellant in all four previous proceedings against the Appellant. In case of CCE Nagpur Vs. Vicco Laboratories - 2005 (179) ELT 17, the Hon ble Apex Court has held that classification cannot be changed without a change in the nature of a product or a fresh interpretation of a tariff heading by such decision. In the present case the goods in question has remained same and there is no change of tariff heading. Thus the contention of the Ld. Adjudicating authority that the change in tariff entry would require relook into classification is absolutely erroneous as the product has remained same and it would remain classified as Homeopathic medicine. 11. After careful appreciation of the facts as narrated above we find no reasons to classify the product as cosmetic under Chapter 33 of the CETA, 1985. We thus hold that the goods are class ..... X X X X Extracts X X X X X X X X Extracts X X X X
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