9911796707
TMI Blog2018 (6) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 and rejected the appeal filed by the appellant. The fact of the case are that the appellant are engaged in the manufacture of medicament falling unde r Chapter 30 and 33 of the Central Excise Tariff Act, 1985. On scrutiny of the ER-1 returns for the period from April, 2007 to December, 2007. It is noticed that the appellant has manufactured and cleared the product "Sentim Toothpaste" under Chapter 30 of the Central Excise Tariff Act, 1984 attracting Central Excise duty @8%, 2% of Education cess and 1% of the S.H.E cess. The said product Sentim Sensitive Fluoride Toothpaste, according to the department, is classifiable under chapter 33 of Central Excise Tariff Act, 1985 and the same is not eligible to be classified as medicament under Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant submits that the product of the appellant are essentially for prevention of decay of sensitive teeth and cavity protection. The observation in the order that Chemicals used in the toothpaste are of general use is devoid of any basis. There is no evidence on regard to substantiate this observation. On the label of the product, it is a mentioned tooth paste for sensitive tooth and cavity protection which does not classify that the tooth paste is essentially for dental hygiene. He submits that the dental cavity is a disease due to bacterial process which may harm tooth structure. For the treatment of such disease this toothpaste is recommended. Therefore, it is clearly used as a medicament. He submits that for the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct in question, cannot be said that it is an ordinary tooth paste classifiable under chapter 33. The identical issue had come up before this Tribunal in the case of ICPA health product vs. the Commissioner of Central Excise Surat I and Baroda vide order no C II/2791-92/WZB/2001 dated 01.11.2001. In respect of product namely Thermoseal and RA Thermoseal, it was held that the said products are classifiable under Heading 3003. The relevant part of the order is reproduced as follows "The Ld. Commissioner in his first observation above has held that unlike the other medicine the literature given does not indicate the period of usage. On record is the printed pamphlet on RA Thermoseal which advices brushing three daily for 15-20 days. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een medicines and cosmetics. The present appellant is the holder of a Drug Licence. The price of the contested products are substantially high than the general tooth pastes sold in general provision shops. The products such are contested before us are not ordinarily sold in general provision shops but are sold in chemists shops. The guidelines laid down by the Supreme Court in dealing with the issue of shampoo which contained medicaments would apply in its entirety to the present case. In view of the higher price, the restricted use generally on a prescription and the fact that a general merchant would not sold the contested product, the ratio of the judgement would apply to the contested products. In yet another case, the Division bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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