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TMI Blog2008 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Karthikeyan, Member (T) Shri N.J. Kumaresh, JDR, for the Appellant. Shri P.C. Anand, Consultant, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - Appeal No. E/325/2005 of Revenue arises before us against an Order-in-Appeal No. 6/2005 (M-1) dated 18-1-2005 passed by the Commissioner (Appeals) which vacated an order of the original authority, passed in terms of the remand directions of this Tribunal. The issue involved is the correct classification of a product named 'Face to Face' (FTF, for short) a cream/lotion manufactured by M/s. Dollar Company Private Ltd. The assessee claims the product to be a medicament used for treating skin diseases. As an ayurvedic medicine, the item falls under Chapter 3003.30 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pharmaceutical or antiseptic constituents or were held out as having subsidiary, curative or prophylactic value. The Tribunal had also directed the original authority to consider the additional materials that were presented before it during hearing. The Commissioner found that the Hindu Mission Hospital, Chennai, in its report dated 24-2-2000, had indicated that clinical trials of 'Face to Face' had been started in 30 cases for treatment of Hypo pigmentation and Hyper pigmentation. The Commissioner observed that the report signed by the Medical Officer of the said hospital was obviously indicative of the impugned product having been 'prescribed' for patients affected with the said skin afflictions. The assessee had produced before the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for certain skin ailments and afflictions. The Commissioner also considered the averment of the assessee that 'Face to Face' was sold only to the dealers of their other medicines such as Hadensa, Lichensa and Rheumensa. In deciding the impugned product as an ayurvedic medicament, the Commissioner banked on the fact that the product contained ayurvedic ingredients though the product itself did not conform to any ayurvedic medicine as per the authoritative texts on ayurveda. It was an ayurvedic product though not a classical one. He noted that the original authority had found that in the literature published by the assessee for marketing the product it was printed in bold letters, "Face to Face, the ayurvedic way to clean, fresh, glowing skin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority noted that the appellants had produced certificates from a large number of medical practitioners to the effect that they had prescribed Face to Face lotion/cream for various ailments of the skin such as acne, hyper pigmentation, hypo pigmentation, sun burn, white patches etc. The clinical trial report on 'Face to Face' prepared by the Medical Officer of the Hindu Mission Hospital, Chennai dated 24-2-2000 stated that 30 cases were studied and in some cases patients experienced moderate improvement in their skin condition. 9. As regards the popular perception of the product, department has not established that Face to Face is known as a cosmetic. The literature on the product issued by the appellants claimed that Face to Face render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d mentioned in the authoritative texts on ayurveda and manufactured under licence to manufacture ayurvedic medicaments under the Drugs and Cosmetics Act, 1940 as ayurvedic medicine. The Tribunal also observed that Revenue's contention that the product was not commonly known or under stood as ayurvedic medicine was not proved by them. (iv) In CCE v. Sharma Chemical Works [2003 (154) E.L.T. 328 (S.C.)] the Apex Court observed as follows: "It could not be denied that all the ingredients used in Banphool Oil are those which are set out in the ayurveda text books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. E/1018/00. 12. Revenue has challenged the order of the Commissioner (Appeals) No. 54/2000 (M-I) dated 10-4-2000. This order had held that refund of excess duty of Rs. 50,20,243/- paid by the respondent determined on finalization of provisional assessment of FTF during 21-3-98 to 10-9-98 did not involve unjust enrichment. The challenge is on the basis that principle of unjust enrichment is attracted even in cases of refund arising on finalisation of provisional assessment. After considering the rival submissions, we find that the Apex Court had in the Mafatlal Industries Ltd. case [1997 (89) E.L.T. 247 (S.C.)] held that the unjust enrichment principle was not attracted in cases of refund arising out of finalization of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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