2004 (12) TMI 92

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..... ons. The period in question is October, 1996 up to June, 1997. 2.The respondent's products were initially classified as "a patent or proprietary medicine not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively Ayurvedic, Unani, Sidha or Homeopathic under Tariff Heading 14-E of the First Schedule to the Central Excises and Salt Act, 1944. It was also classified under Chapter 30 after coming into force of the Central Excise Act, 1985 as a pharmaceutical product. By three show cause notices dated 2-5-1997, 16-9-1997 and 27-10-1997 relating to period between 31-10-1996 and June, 1997, the appellant sought to allege that the assessee's products should be really class .....

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..... ssification as concluded by the Department at all. In that case the Tribunal had considered the evidence produced before it with regard to the sale and purchase of the product in question. It was found as a matter of fact that in common parlance the product was not described as a medicinal preparation but was described as a toilet preparation. This court affirmed the tests laid down by the Tribunal, namely, that since the primary object of the Excise Act was to raise revenue, resort should not be had, for the purpose of classification, to the scientific and technical meaning of the terms and expressions used therein but to their popular meaning, that is to say, the meaning attached to that by those using the product. 5.The Court also noted .....

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..... ment in holding that the product was a cosmetic only because it was not sold by chemists or under doctors prescription. This, according to the decision, does not by its itself lead to the conclusion that it is not a medicament. The Court reaffirmed the test as categorically laid down in Shree Baidyanath, namely, that the burden of proof that a product is classifiable under a particular tariff head is on the revenue and must be discharged by proving that it is so understood by consumers of the product or in common parlance. [See also Meghdoot v. Commissioner of Central Excise : 2004 (174) E.L.T. 14 (S.C.)]. 8.Although the adjudicating authority had found in the course of the hearing that the market survey indicated that the product in quest .....

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