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TMI Blog2004 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... Shree Baidyanath's case [1995 (3) TMI 109 - SUPREME COURT OF INDIA], the same cannot be sustained. The appeals are accordingly dismissed without any order as to costs. It will be open to the Department to take such tests if otherwise so entitled in respect of the products for the purpose of classifying the products under the appropriate tariff heading as they may be advised. - 7896-7897 of 2003 - - - Dated:- 7-12-2004 - Ruma Pal, Arijit Pasayat and C.K. Thakker, JJ. [Order]. - The question which is raised for our decision in these appeals is whether the respondent's products, namely, turmeric skin cream and vajradanti toothpaste and tooth powder are classifiable under Chapter 30 of the Central Excise Tariff Act or under Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s classifiable as a pharmaceutical product under Chapter 30 of the Central Excise Tariff were (1) whether the products are being used daily and are sold without prescription by a medical practitioner; and (2) whether the products are available in General Store Department/Grocery shops. The department' s case in the show cause notice is that as these two tests were not fulfilled, the product failed to come within the prescription of pharmaceutical products in Chapter 30. 4.The mere decision of a court of law without more cannot be justification enough for changing the classification without a change in the nature of a product or a change in the use of the product, or a fresh interpretation of the tariff heading by such decision. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a product is to be proved as a medicine or as a cosmetic. Indeed this Court in BPL Pharmaceuticals Ltd. v. CCE reported in 1995 (Suppl.) 3 SCC 1 has upheld the classification of 'Selsun' medicated shampoo as a medicine and not as a cosmetic and held that in order to attract Note 2 to Chapter 33 the product was first proved to be a cosmetic and "that the product should be suitable for use as goods under Heading Nos. 33.03 to 33.08 and they must be put in packing as labels, literature and other indications showing that they are for use as cosmetic or toilet preparation." 6.These observations however were not made in connection with Chapter Note 1(d) of Chapter 30 the impact and purport of which may have to be considered in an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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