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TMI Blog2009 (2) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... exus-International” and “Lexus-Red Roses” used on trial basis on people afflicted by ring worms. - the impugned order is sustained and this revenue’s appeal is dismissed. - E/2293/2003 - A/98/2009-WZB/C-II/(EB), - Dated:- 4-2-2009 - S/Shri P.G. Chacko, Member (J) and K.K. Agarwal, Member (T) REPRESENTED BY : Shri H.B. Negi, SDR, for the Appellant. S/Shri Vishal Agarwal and Saket Patwari, Advocates, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - This appeal of the Revenue is against classification of certain products of the respondents (assessee) as ayurvedic medicaments under sub-heading 3003.10 of the Schedule to the Central Excise Tariff Act. The appellant wants them to be classified as cosmetic preparations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and therefore the benefit of Notification No. 140/83-CE was not deniable. The Commissioner (Appeals) accepted all the above submissions of the assessee. 3. Reiterating the grounds of the appeal before us, the learned SDR submitted as follows :- (a) The ingredients viz. marigold, khas and jasat bhasma (zinc oxide) which were claimed to have been used in the products to make them ayurvedic medicines imparted only a subsidiary medicinal value to the products which were used as cosmetic preparations only. (b) The description given on the product container itself revealed that the products were meant for skin care only. (c) The assessee in their statement under Section 14 of the Central Excise Act admitted that (i) no prescription wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 14 of the Central Excise Act. The brand name did not belong to the assessee during the period 1-10-1997 to 31-10-1997 and therefore their claim for exemption was barred by para (b) of Notification 140/83. 4. The learned counsel for the respondent argued in support of the appellate Commissioner's order. He submitted that the Revenue had not successfully discharged its burden of classification of the goods under heading 33.04. He produced a copy of the licence dated 21-5-1997 issued by the (Food Drug Administration (FDA) under the Drugs Cosmetics Act, 1940 to the respondent to manufacture "Rishiraj ayurvedic medicated powder" as ayurvedic drug for a period upto 31-12-1998. Materials of clinical study on ring worm-affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other skin ailments. On the other hand, according to the Revenue, the products were intended to be cosmetic preparations with subsidiary therapeutic value. It is said that the goods were marketed as talcum powder only and that anybody could purchase the same without a medical prescription. The Revenue has also relied on a statement given by the assessee under Section 14 of the Central Excise Act, wherein they had stated that no prescription was required from a medical practitioner for using their products and that no dosages were prescribed for using the goods. The Revenue has also relied on the chemical test report, which stated that the products were for care of skin and having the composition of talcum powder. The assessee has opposed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the authorities whose exclusive jurisdiction it is to classify the goods under the tariff. We further find that, on the strength of documentary evidence like clinical study reports, certificates of medical practitioners, literature on medicinal value of the ingredients used in the subject products etc., the lower appellate authority has recorded the finding that all the goods were ayurvedic medicaments used against ring worms. In the present appeal, the Revenue has not disputed the evidentiary value of the documents produced by the respondent. In this scenario, we find no valid reason to interfere with the decision of the lower appellate authority. 6. The learned Commissioner (Appeals) found that the products contained medicinally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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