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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 ..... roduct 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 notifications or the tariff rate from time to time as applicable to Homeoptahic medicine falling under chapter 30 respect of clearances made by them. The Appellant units were issued show cause from time to time alleging that the aforesaid goods are preparation for use on the hair and are classifiable under chapter sub heading no.33059019 and are liable to duty accordingly as Cosmetic. Therefore the SCN demand differential duty and also proposed to impose penalty under section 11AC readwith Rule 25 of central Excise Rules, 2002. The demands were confirmed by the impugned orders as above and penalties were imposed. Hence the present appeals before us. 3. Ld. Counsel appearing on behalf of the appellant submit that the product in question is mixture of four Homeopathic medicine namely Arnica; Canthris, Pilocarpin and Cinchona in coconut oil base. The ingredie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30 or are cosmetics. He submits that the licence by the Drug controller is also important to classify the Product. He submits that without change in the nature or use of the product the classification made by them cannot be set aside. He also field written submission to the effect and judgment of Hon'ble Supreme Court in case of CCE Vs. Sharma Chemical Works 2003 (154) ELT 328 (SC) and CCE Vs. Pandit D.P. Sharma - 2003 (154) ELT 324 (SC). Further he relies upon the judgment of Hon'ble Apex Court in case of Sujanil Chemco Industries Vs. CCE, Pune - 2005 (181) ELT 206 (SC) and Tribunal other in case of Bakson Homeo Pharmacy (P) Ltd. Vs. CCE, New Delhi - 2001 (136) ELT 485 (TRI-DEL). 4. The Ld. AR appearing for the revenue supports the impugned order and reiterates the findings of the adjudicating authority. 5. We have considered the submissions made by both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hances 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 normal hair oil would not be put to such use. We find that nowhere the show cause notice or the impugned order it is demonstrated that the product in question was projected as cosmetic or toiletary product by the Appellant or known in the market as such. We also find that the appellant has submitted certificates issued by the Practitioners in the file that the product in question is used as medicine. Only for the reasons that it is sold by the medical shop as well as general stores or that it is not sold under the prescription of doctors would not take it out form the category and classification as medicine. Our views are based upon the judgment of Hon'ble Apex Court in case of Commissioner v. CIENS Laboratories 2013 (295) ELT 3 (SC). The relevant excerpts of the order are as under : "14. Another contention advanced by the appellant-Central Excise is that the product is sold not un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appearance of the persons. The primary role of the product was to grow hair on his head and cure his baldness. 21. The extent or the quantity of medicament used in a particular product will also not be a relevant factor. Normally, the extent of use of medicinal ingredients is very low because a larger use may be harmful for the human body. The medical ingredients are mixed with what is in the trade parlance called fillers, or vehicles in order to make the medicament useful. To illustrate an example of Vicks Vaporub is given in which 98% is said to be paraffine wax, while the medicinal part i.e. Menthol is only 2%. Vicks Vaporub has been held to be medicament by this Court in C.C.E. v. Richardson Hindustan Ltd. - 19898 (42) E.L.T. A100. Therefore, the fact that use of medicinal element in a product was minimal does not detract from it being classified as a medicament. 22. In order to be a medicinal pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Revenue before the Tribunal in the case of Hmtaj Ayurvedic Udyog Kendra and the same were not accepted by the Tribunal Apart from the Larger Bench decision in the above case we also take note of the Hon'ble Supreme Court's decision in the case of Sharma Chemicals reported in - 2003 (154) ELT 328 (SC) laying down that the product should be manufactured in accordance with the various ingredients specified in the authoritative ayurvedic book and under a licence from the Drug Control authority have to be classified as Ayurvedic medicine. We find that apart from the various facts enumerated above the assessee has also produced affidavit/certificate/clinical trial report showing that the product is formulated to cure various hair diseases like Alopecia, Graying of hair, dandruff, Itching of skull and to improve blood circulation to hair follicles. Hence, the product has to be held as having therapeutic and prophylactic value. As such we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence 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 subject cases, on many occasions in the past, Appellant were issued show cause notices for classification of goods as cosmetic and the appellate authority after going into all the aspects of common parlance as well as contents of the product and its usage held that the product is Homeopathic medicine. The adjudication authority has relied upon the judgment of Hon'ble Supreme court in case of CCE, Nagpur Vs. M/s. Shree Baidyanath Ayurved Bhavan Ltd. - 2009 (237) E.L.T 225 (S.C.) to state that the product in question does not satisfy the common parlance test. We find that the ratio of said judgment is not applicable as in the said case, the product "Lal Dant Manjan" was known as toilet preparation in common parlance and not as Ayurvedic medicine. Whereas in the present case the facts are entirely different as the Appellant has sold the goods as Homeopathic medicine and it is known as Homeopathic medicine in the common parlance. Even as apparent from facts th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Central Excise Tariff in the year 2012 would require relook into the classification of the product in question and thus refused to accept the settled classification of goods under chapter 30 in terms of Appellate Orders passed in favour of Appellant. However on the other hand the adjudicating authority has relied upon the judgments rendered in the context of Central Excise Tariff before year 2012 and the Board Circular issued in year 1997 which clearly shows that there is no uniformity adopted by him to decide the issue. The adjudicating authority has relied upon the Circular No.333/49/97 - CX dt. 10.09.1997 to hold that the medicine is prescribed by the medicine practitioner, used for limited time and not every day unless it is prescribed to deal with specific disease. He also relied upon the judgments in case of Alpine Industries Vs. CCE, Delhi - 1997 (92) ELT 53 (TRI), CCE, Mumbai Vs. M/s. Muller & Phipps, Richardson Hindustan Ltd. - 1998 (35) ELT 424 (TRI) to hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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