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TMI Blog2003 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... e of skin but is oil for massage and it takes care of the skin. Against assessee. - 4589 of 1995 - - - Dated:- 25-3-2003 - M.B. Shah and Arun Kumar, JJ. [Judgment per : M.B. Shah, J.]. - It is the contention of the appellant-Company that it is engaged in manufacture inter alia of Ad-vitamin Massage Oil forte (Patent or Proprietary Medicines) since 1949 on the basis of sanction accorded by the Drug Control Authorities. This preparation was brought and classified for levy of duty of Excise with effect from 1-3-1961 falling under Tariff Item No. 14E of the First Schedule to the Central Excise and Salt Act, 1944 (hereinafter referred to as "the Act"). By order dated 26-12-1985, the Assistant Collector classified the said product under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also dismissed. 4.The Tribunal observed that the vitamins are added in several cosmetic preparations, skin care lotion etc. but mere addition of vitamins would not render the product as a drug. The product has to be judged entirely in the light of the words in tariff and not with reference to the licence under the Drug Control Act. After detailed scrutiny of the documents filed by the appellant and the contentions raised by the parties, the Tribunal arrived at the conclusion that the classification done by the authorities below under sub-heading 3304.00 is correct and the product in question is clearly a massage oil, intended for care of the skin but possibly having some marginal medicinal properties. 5.Aggrieved by the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Duty 14F. Cosmetics and toilet preparations not containing alcohol or opium, Indian Hemp or other narcotic Drugs or narcotics, namely — One hundred per cent ad valorem. Preparations for the care (i) of the skin including beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods and tonics, face powders, baby powders, toilet powders, talcum powders and lipsticks. (ii) - (iii) ………" 9. By introduction of Finance Bill, 1985, explanations II and III were added to the said tariff item No. 14F of the Central Excise Tariff. Relevant Explanation II reads as under : — "Explanation-II :— This item includes cosmetics a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value. 5. Heading No. 33.04 applies, inter alia, to the following products: beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods, skin tonics, face powders, baby powders, toilet powders, talcum powders and grease paints, lipstics, eye shadow and eyebrow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants". 11. From the aforesaid Chapter notes, it is clear that heading 33.03 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :— "The certificate issued by the Army Authorities and the chemical ingredients of the product are not decisive on the question of classification of the product for levy of excise duty. It is firmly established that on the question of classification of the product under Central Excise Tariff Act "commercial parlance theory" has to be applied. It is true that the entry supply by the appellant of its product 'Lip Salve' has been to the Defence Department for use of military personnel but that would also not be determinative of the nature of the product for classifying it. It is not disputed that the product "Lip Salve" is used for the care of the lips. It is a product essentially for "care of skin" and not for "cure of skin". It is therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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