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TMI Blog2006 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.30. Items at Serial Nos. 5, 6 and 8 viz. Puma Herbal Massage Oil, Puma Herbal Massage Oil for Women and Puma Scalp Tonic Powder (Scalpton) however do not appear to be of any medicinal property and it is difficult to classify them under the head of medicament. In fact the learned counsel for appellant conceded that these three items do not qualify to be treated as medicaments. Therefore, the same will be liable to be classified as "cosmetic" under Chapter head 33.04. Regarding these 3 items the matter will have to go to the Assistant Collector for quantification of the duty for the relevant period. Subject to this, the appeals are allowed. - Civil Appeals Nos. 6319-6321 of 2003 & 1414, and 1415, 1416 of 2004 - - - Dated:- 8-3-2006 - Ashok Bhan and Arun Kumar, JJ. V. Lakshmi Kumaran, Alok Yadav, S.V. Deshpande, Ms. Anu-radha Rustagi and Karan Talwar, Advocates, for the appellant. K. Radha Krishnan, Senior Advocate (Hemant Sharma, B.K. Prasad and P. Parmeswaran, Advocates with him), for the respondent. [Judgment per : Arun Kumar, J.] - The appellant claims to be a manufacturer of Ayurvedic products which are intended to cure certain ailments of the human body. A ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a medicated soap. Such a soap will not be an ordinary cosmetic. It will be medicament falling in Chapter 30 of the Tariff Act. II. Are the ingredients used in the product mentioned in the authoritative text books on Ayurveda? 3.The two tests are recognized even by the Central Board of Excise and Customs and the Board had vide its letters dated 3rd October, 1991 and 5th December, 1991 directed the Assistant Collector to decide the classification of the products in question by applying the aforesaid two tests. 4.The learned counsel for the appellant has argued that the products of the appellant satisfy both the above tests and, therefore, the CEGAT was wrong in classifying them under Chapter 33 as cosmetics. According to the learned counsel the products in question have a special use. They are not items of common use. Only those who want to treat a particular ailment will go for the particular product of the appellant. The use of a product by the customers i.e. how the consumers take to a product is a very useful method of determining the classification of products. What is to be seen is whether the products are likely to be in common use by normal consumers. Common parlance me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sort to rebut the evidence led by the assessee. It is settled law that burden of showing correct classification lies on the revenue. The revenue has done precious little in this case to discharge this burden. The Collector (Appeals) further relied on the following evidence in support of his finding that the products in question fall in the category of medicaments : (i) Licence No. A40 888 granted by the Drug Controllers, Maharashtra. (ii) The inscription of the words on the wrapper "Ayurvedic Proprietary medicines or and Ayurvedic licence No. A 888 on the wrapper mentioning of percentage of ingredients as approved by the Drug Controller. (iii) Circulation of Therapeutic Index of the products for the use of Doctors Vaidyas. (iv) Certificate issued by Dr. Narendra Agashe, M.D. Medical Superintendent Dr. Dalvi Memorial Hospital, Nagpur, the relevant extract of which is reproduced below : "This is to certify that we in this hospital have extensively tried the following Ayurvedic Medicinal Products from Puma Ayurvedic Herbal Cosmetics Co., Nagpur. We have found them to be of good therapeautic value and prescribe them regularly whenever the need ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 257. Two appeals were under consideration in this case. One was with respect to Vicks Vapo Rub and Vicks Cough Drops while the other was with respect to Sloan's Balm and Sloan's Rub. Both the appeals were allowed holding that the items in question were classifiable under the Chapter dealing with medicament in the Central Excise Tariff Act. In this case this Court followed the twin test earlier upheld by this Court in C.C.E. v. Richardson Hindustan Ltd. - 1989 (42) E.L.T. Al00. Further this Court observed : We are also of the opinion that when"39. there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners in Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively Ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bur (India) Ltd. v. C.C.E. - 2005 (182) E.L.T. 290 (S.C.). This is a judgment of three Judge Bench of this Court and the products under consideration were Janam Ghunti and Lal Tail. Regarding Lal Tail, this Court held that it was liable to be classified as medicament under Chapter 30 as all its ingredients were found to be in Ayurvedic texts. However, regarding other product the matter was remanded for further consideration on basis of evidence to be recorded. 18.From the above judgments it follows that the law is settled on the applicability of the twin test for determination of classification of a product. We have already found that the twin test is satisfied in the present case regarding most of the items under consideration. 19.The word 'medicament' is not defined anywhere while the word '"cosmetic" is defined in the Drugs and Cosmetics Act, 1940 as under : "A 'cosmetic' means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs or toilet preparations or put up in a form clearly specialized 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." 24.On the basis of this Note it was argued that even if a product had some curative or prophylactic value, it will still be cosmetic. We cannot accept this argument. The learned counsel has overlooked the use of the word 'subsidiary' in the said note from which it follows that a subsidiary curative or prophylactic use will not convert a cosmetic into medicament. We have tried to illustrate this by giving the example of bald man treating his baldness by use of Ayurvedic product. The curative use of the product is primary in that example and not subsidiary. The subsidiary result is improvement in appearance. Therefore, in our view, Note 2 to Chapter 33 does not help the respondent. Rather Note 5 to the said Chapter, makes it clear that the products which fall under Heading 33.04 are primarily beauty or make up preparations. They may incidentally help in protection against skin irritants. They may also help as a skin tonic, yet they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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