2008 (6) TMI 165

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..... u/sh 3003.10 and not u/sh 3306.10
S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J) Shri N. Mullick, Advocate, for the Appellant. Shri Sanjay Kumar, DR, for the Respondent. [Order per: P.K. Das, Member (J)]. - Common issue is involved in both the appeals and therefore, these are being taken up together for disposal. 2. The issue involved in these appeals is as to whether the products Toss (Strontium Chloride 10% w/w) and Toss-K (Potassium Nitrate B.P. 5% w/w) are classifiable under sub-heading 3003.39 Pharmaceutical products as claimed by the appellants or sub-heading 3306.10 Cosmetic or toilet preparation as claimed by the Revenue. 3. The learned Advocate on behalf of the appellants submits that the product Toss and Toss-K .....

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..... y Medicaments) 3003.39 Other" "Chapter 33 Essential Oils and Resinoids, Perfumery, cosmetic or toilet preparations Tariff Item Description of goods 3306 Preparation for oral or dental hygiene, including denture fixture Panties and powders; yarn to clean between the teeth (dental flos), in individual retail pack ages 3306.10 Dentifrius :". 6. The learned Advocate on behalf of the appellants in support of his contention that the said products are medicaments, made submission and produced the evidences as under:- (a) Drug Controlling-cum-Licensing Authority issued licence for manufacturing of the said products under Drugs and Cosmetic Rules,1945. (b) Both the products are included as a drug in the British Pharmacopia (c) Strontiu .....

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..... ceutical Ltd. (Supra) held that to attract Chapter 33, the product must first be a cosmetic and used as cosmetic or toilet preparation. The relevant portion of the said decision is reproduced below:- 31. The contention based on Chapter notes is also not correct. One of the reasons given by the Authorities below for holding that Selsun would fall under Chapter 33 was that having regard to the composition the product will come within the purview of note 2 to Chapter 33 of the Schedule to Central Excise Tariff Act, 1985 is without substance. According to the Authorities the product contains only subsidiary pharmaceutical value and, therefore, notwithstanding the product having a medicinal value will fall under Chapter 33. We have already set .....

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..... the products are intended to be used for curing the disease. The learned DR relied upon the Chemical Examiner report which is not giving any impression that the product is cosmetic or toilet preparation. The learned DR further emphasized that the appellants on earlier occasion, declared the product other than medicament. It is settled that there is no estoppel in the classification of the goods. The case law relied upon by the learned DR is not applicable in the instant case. 11. In view of the above discussion and after considering the composition of the product, labels, literature, character, usage and drug licence issued by the Competent Authority, we hold that the said products are classifiable under Heading 3003.10 of the Schedule to .....

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