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TMI Blog2018 (8) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... wakamadhuri Keeps skin loss without freckles and spots. 4 Subarna Removes dead cells and black heads for oil skin. 5 Angarag Beautifies the skin of sun-burn and black patches, ensures dazzling liveliness. Enhances glamour and beauty. 6 Tanurima Fair and glossy skin for your baby. 7 Romancho (lavender) Soothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples. 8 Romancho (Vanilla) Soothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples. 9 Romancho (Kewra) Soothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples. 10 Swarnabho keeps skin s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd tighten skin pores. Make skin soft and more elastic, reduces skin oilyness. 21 Twaka Snigdha (Neem) Helps in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth. Helps to skin and tighten skin pores. Make skin soft and more elastic, reduces skin oilyness. 22 Twaka Snigdha (Rose) Helps in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth. Helps to skin and tighten skin pores. Make skin soft and more elastic, reduces skin oiliness. 23 Sukhparash Prevents from pimples, blemishes and skin rashes. Helps to cure minor and sunburn quantity. 24 Namrata Helps to moisturize, soften and hydrate the skin. Prevents skin from rashes and burning sensation. 25 Aadrita Helps to moisture, soften and hydrate the skin. Prevents the skin from rashes and burning sensation 26 Komal Parash Soothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples. 27 Tanutra Protects skin fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since classification is sought for each individual product. Authority for Advance Ruling is cautioned against accepting similar applications in future where multiple products are covered in a single application. However, since WBAAR had admitted the application and passed a Ruling, the Appeal filed is being taken up for disposal. 6. The Appellant has filed the Appeal on the following grounds: a. The Ruling of the WBAAR has erred in not passing a Ruling for products that have yet to come into existence. Under Section 95(a) "advance ruling" means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in Sub Section (2) of Section 97 or Sub-Section (1) of Section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant; b. Classification is to be based on the true nature of the product and not on how they are offered; c. Classification is to be done on the settled principle of the Twin Test; d. Sole reliance on labels for classification is not lawful; e. All information in the label relevant for classification has not been considered; f. Parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appellant, in it is written submissions, pointed out that the Ld. WBAAR has erred by not considering that the 'heading' [as specified in the First Schedule to the CTA' 75 (Customs Tariff Act, 1975), read with the Rules for the Interpretation of the First Schedule to the CTA' 75, as well as the Section and Chapter Notes] does not require any product to be offered primarily as 'medicament' to merit classification of the relevant products as medicaments. Reference has been made to the judgements passed by the Hon'ble Supreme Court of India in B.P.L. Pharmaceuticals Ltd. Vs. Collector [1995 (77) E.L.T. 485 (S.C.)] and Lohia Machines Ltd. vs. UOI & ORS [1987 (28) E.L.T. 234 (All.)]. The Appellant argued, citing the decision of the Hon'ble Tribunal in CCE, Pune vs. ESSEN Products (1) Ltd. [2006 (200) E.L.T. 342 (Tri. - Mumbai)], that packing is not indicative of classification under Chapter 33 of the Tariff as cosmetic or toilet preparation and that advertisement is not to be relied upon - essential character of the product is relevant. 11. The Appellant argued that the WBAAR pronounced their Ruling without considering the 'twin test' as set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it as, "Any permanent or semi-permanent disturbance of structure or function of any part body caused by an external agency. Such agency may be mechanical, thermal, chemical, electrical or radiational. The term may also be applied to damage caused by infecting organisms or to psychological trauma" 16. Again, in Medical terms "illness" or "ailment" is often defined as "A physical or mental disorder" [American Heritage Medical Dictionary], or "A complaint disease or physical disorder" [Farlex Partner Medical Dictionary] 17. Before taking up the product-wise analysis, an understanding of the skin ailments mentioned by the Appellant in the Annexure-X of written submission, is necessary: "Blackheads": Usually the primary sign of acne, consisting of a widened hair follicle filled with skin debris, bacteria, and oil called sebum. A blackhead has a wide opening to the skin and is capped with a blackened mass of skin debris. "Acne": Localized skin inflammation as a result of over activity of the oil glands at the base of specialized hair follicles. Acne happens when oil (sebaceous) glands come to life around puberty, when these glands are stimulated by male hormones that are produced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "substances which are not listed in The Indian Standard (I.S. 4707-2) may be classified as cosmetics." Hence we cannot unequivocally accept that by virtue of their ingredients, the products qualify as medicaments and not as cosmetics. The Appellant submitted that four of its products, namely Romancho (Lavender), Romancho (Vanilla), Romancho (Kewra) and Komol Parash contain Salicylic Acid which is mentioned at Page-54, serial No. 100 of the Indian Standard (I.S. 4707-2) published by the Bureau of Indian Standards and accordingly CANNOT BE classified as cosmetics. 21. Review of the Indian Standard (I.S. 4707-2) published by the Bureau of Indian Standards Page-54, Sl. No. 100 reveals that the maximum authorised concentration in the finished cosmetic product for Salicylic Acid is 3.0 % in Rinse off hair products and 2.0% in other products, de-categorising the item as "cosmetics". From Annexure 'F' Appellant's written submission it has been found out that: Sl. No. Name of the product Quantity of Salicylic Acid per 5 gms Percentage 1 Komol Parash 0. 104 2.08 2 Romancho Lavender 0.203 4.06 3 Romancho anilla 0.203 4.06 4 Romancho (Kewra) 0.203 4.06 22. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes skin soft and more elastic, reducing excess skin oil, protecting from sun-burn injury. 25. None of the above descriptions qualify for categorising the products as "medicaments" or "medicines" as they are not used in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings; rather they are more in tandem with the definition of 'cosmetics' as we find in the Drugs and Cosmetics Act, 1940, because none of the problems that these products treat can be classified as "Injury" or "ailment" as already discussed in Para 14 and Para 15 above. 26. The General Explanation to Chapter 33 states that "The products of headings 33.03 to 33.07 remain in these headings whether or not they contain subsidiary pharmaceutical or disinfectant constituents or are held out as having subsidiary therapeutic or prophylactic value" 27. Explanation to Sub-Heading 33.04(A) states that this part covers: "(3) Other beauty and make-up preparations and preparations for the care of skin (other than medicaments) such as: face powders (whether or not compressed), baby powders (including talcum powders, not mixed, not perfumed, put up for retail sale), other powders and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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