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TMI Blog2003 (1) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... -11-1993 to 28-2-1994 and 50% rate of duty from 1-3-1994. A reply was filed by the assessee respondent stating that the Food and Drug Administration, Maharashtra State have considered the same product as an Ayurvedic Product and granted a licence accordingly. They also stated that if the product would have been merely a 'Cosmetic' as defined in the Drugs and Cosmetic Act they would not have been granted a licence as an Ayurvedic drug. They relied on interpretation given by the said authority for purpose of Central Excise Tariff Act. 3.It was specifically urged at the time of personal hearing before the Assistant Commissioner that the product was a combination of natural ingredients and thus not cosmetic but herbal and medical preparation. Siddha was not an Ayurvedic but 1icences were common. They relied on Chapter notes 2 and 6 of Chapter 33 of Central Excise Tariff Act. The Assistant Commissioner on the basis of the evidence adduced before it and on the basis of the literature pasted on the Unit Pack held as under. "It is natural foam softly cleans hair, makes them beautiful and prevents them from dandruff. The pouch which has the unit packing is depicted is coloured and depi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2 - Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up 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 va1ue. Chapter Note 4 - In relation to products of Heading Nos. 33.03, 33.04 and 33.05, conversion of powder into tablets, labelling or relabelling of containers intended for consumers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the products marketable to the consumer, shall be construed as 'manufacture'. The herbal Shikakai powder manufactured by the appellants are sold in unit packings with labels which clearly contained indication that they are for use for the hair and make the hair silky, black, smooth and shining. It is clear that such shikakai powder would fall for classification und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% Tanraj oil, "made Sidhhi" with various other ingredients. The meaning of the term "made Sidhhi" was not clearly explained. It however appears that these are ingredients that give the product its medical properties. With the exception of dhatura (15%), other ingredients consist of 1% or 0.5%. There is no material to show that, in these proportions, each of the ingredients or all the ingredients, acting in combination, confer on the other oils any therapeutic or a prophylactic properties. There is therefore total absence of support for the claim that the product has any therapeutic or prophylactic properties. It is not the case of the appellant that the product could be sold only by means of a prescription to be given by a registered medical practitioner. The ingredients of the product by way of totalling the same exceed 100%, namely as it will be indicating composition about 100% is concerned by sesamum oil and tanraj oil. If that were to be so, how the other ingredients are having any effect on the final product. In the BPL Pharmaceuticals Ltd. case at para 34 it has been held as follows :- "Another reason given by CEGAT is that Heading 33.05 uses the word "Preparation for u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e therefore vehemently claims this product to be an ayurvedic medicine. The product is advertised, held out and sold as Trichup oil which is said to have some pharmaceutical constituents. It is as printed on the label, held out to be ayurvedic ingredients as listed on the label. The assessee therefore vehemently claims this product to be an ayurvedic medicine. The product is advertised, held out and sold as Trichup oil which is said to have some pharmaceutical constituents. It is noteworthy that the assessee does not consider the same to be hair oil, much less the perfumed hair oil. When the product is claimed and offered to be providing nourishment to the hair, it cannot certainly be treated as merely made for routine type of perfumed hair oil but would fall in the category of products illustrated in Note 6 of Chapter 33 of the said Schedule. Because Trichup oil is manufactured under the licence issued by the drug control authority of the State Govt. it cannot be straight way considered as ayurvedic medicaments. The licence under the Drugs and Cosmetics Act is not determining factor for classification under C. Ex. Act as held by the Tribunal in the case of M/s. Alpine Inds. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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