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TMI Blog2018 (6) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... peposodent, etc. but it is sold with a declaration on the product that it is used for treatment of tooth decay and cavity prevention for the sensitive teeth. Therefore, for the product in question, cannot be said that it is an ordinary tooth paste classifiable under chapter 33. Appeal allowed - decided in favor of appellant. - Appeal No. E/404/2010-DB - Order No. A/ 11139/ 2018 - Dated:- 5-6-2018 - Shri Ramesh Nair, Hon'ble Member ( Judicial ) And Shri Raju, Hon ble Member ( Technical ) For the Applicant : Shri Anand Mishra ( Advocate ) For the Respondent : Shri N. Satwani ( AR ) ORDER Per : Shri Ramesh Nair This appeal is directed against order in appeal No. 59/2009 (DBR)HKJ/Commr.(A)/AHD. Dated 29.12.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the contrary, appellant recommends continuous use of the said product; that unlike other medicines, the label does not indicate the period of usage; that in terms of chapter note and chapter 30 of the Central Excise Tariff Act, 1985 the product cannot be classified under this chapter, even though they contain therapeutic or prophylactic properties. On this basis a show cause notice was issued which was culminated into adjudicating order wherein the goods namely Sentim sensitive fluoride toothpaste , was held classifiable under Tariff Heading 3306 1020 instead of Chapter 30. Accordingly, differential duty was confirmed and interest was also demanded. Being aggrieved by the order in original, the appellant filed appeal before the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and sodium chloride standard set out in Indian Pharma copia. Accordingly, the product manufactured out of the drugs and meant for treating a diseases like as teeth decay is medicament and not ordinary toothpaste. 3. On the other hand, Ms. Nitina Nagori, Ld AR appearing on behalf of the revenue reiterates the findings of the impugned order. We have carefully considered the submission made by parties and perused the records. We find that the product manufactured by the appellant is sold in the name of Sentim Sensitive Fluoride toothpaste . The products are manufactured from the ingredients i.e. drug namely Potassium Nitrate B.P., Sodium Fluoride dentrifice base and Sodium Benzoate. The product is not ordinarily sold as tooth paste like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es sold in the market. We find that whereas the price for the contested products was ₹ 25 to ₹ 27, the other toothpaste of the same size and weight were selling at ₹ 13.50 to ₹ 8.8. In a number of disputes, the classification of cosmetic medicaments have come up for discussion. In dealing with the classification of tooth powder in the case of Shree Baidyanath Ayarved Bhawan Ltd. vs. CCE, Nagpur |1996(83)EET 492 (S.C.), the Supreme Court observed that medicine was ordinarily prescribed by a medical practioner and it was used for a limited time. In case of increased sensitivity of the dental, a person would ordinarily go to a dentist and who would prescribe a preparation to grant a measure of relief. The patient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would depend upon its quantity and effect. A similar contention wa made in the cited judgement of BPL Pharmaceuticals Ltd. The Supreme Court observed that the selenium sulphide content which was the principal agent in the shampoo was not of subsidiary quantum but that it was of therapeutic preparations. In the present case, we find the entire paper referred to prepared by Japanese Dentist dealing with Strontium Chloride used on 10% of the disputed product. It cannot be said that the native agents viz Strontium Chloride and Potassium Nitrate were having a subsidiary function in the preparation. We thus find that the contested products merit classification under heading 3003. The appeals succeed and are allowed with consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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