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TMI Blog2004 (1) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Lawsonia Inermis (S : Medika), Base Q.S. (ii) Canifur AZ Liquid : Combined extract of Melia Azadirachta (S : Nimba), Lawsonia (S. Medika) and Cocos nucifera (S : Gadapushpa), Base Q.S." 2.2He mentioned that the impugned products contain ingredients which are mentioned in the Ayurvedic Textbooks and are used to cure pets and animals from lice, ticks, mites and dandruff; that these products are bought and sold only from drug shops and on prescription of doctors; that the Revenue has classified these products under sub-heading 3305.90 on the ground that the therapeutic/prophylactic properties of the products is not the primary use and is only secondary and that these products have not been manufactured in accordance with the formulae prescribed in Ayurvedic Texts and the products as such do not find mention in the Ayurvedic Textbooks. 2.3The learned Counsel submitted that for a products to be classified under Heading 30.03 as Ayurvedic medicament, the requirement is only that the ingredients of the product should find mention in the Ayurvedic Textbook, the products would be classified as Ayurvedic medicaments only though as patented medicines; that the Larger Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 1994, when the patented Ayurvedic medicines attracted duty of excise, they filed classification under Heading 30.03; that there is nothing on record to suggest that the Appellants had any mala fide intention to evade payment of duty; that for the same reason no penalty is imposable on any of the Appellants. 5.1 Countering the arguments, Sh. Jagdish Singh, learned DR, submitted that the impugned products are not medicaments but veterinary shampoo having some subsidiary curative or prophylactic value; that the primary use of the product is as a shampoo for dogs, cats and other animals; that the Commissioner has given his specific finding in Order-in-Original, dated 30-12-97 that the label of product 'Canifur' indicated as under : "Bathe the dog to ensure complete wetting. Apply 10 to 20 grams of Canifur and rub thoroughly into the depth of the hair coat for 5 to 10 minutes and wash with the water. Repeat using Canifur again and rinse thoroughly with water. Pat dry with clean towel. Brush the coat when dry. Regular weekly use of Canifur provides effective results or use as directed by the Veterinary practitioner." 5.2 He also stated that the label boldly claims the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yurveda"; that in 'Himtaj' case there were sufficient materials to support the contention that the said product is known as Ayurvedic medicament in common parlance which is missing in the present matters. 6.The learned DR referred to Note 1(d) to Chapter 30 of the Tariff which excludes "Preparations of Chapter 33 even if they have therapeutic or prophylactic properties" from the purview of Chapter 30 and stated that Note 2 to Chapter 33 is also to the same effect as it provides that Heading Nos. 33.03 to 33.07 "includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value"; that the products in question are veterinary shampoo having some subsidiary curative or prophylactic value and as such is classifiable under Heading 33.05 of the Tariff. 7.In reply the learned Advocate submitted that in a medicine, some other ingredients such as excipients, fillers are added as a pharmaceutical necessity; that use of these ingredients would not make an ayurvedic medicament as a cosmetic or toilet properties; that the Central Board of Excise Customs itself has clarified under Circular N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.). Moreover, the Supreme Court has also held in C.C.E., Calcutta v. Sharma Chemical Works - 2003 (154) E.L.T. 328 (S.C.) that the formula may not be as per the Textbooks and a medicament can also be under a patented or proprietory formula. Thus a product does not cease to be an ayurvedic medicament, which contains ingredients mentioned in the authoritative Textbooks on Ayurveda, merely because it has not been processed or manufactured according to formulae prescribed in the authoritative Ayurvedic Textbooks. 9.1 The second contention raised by the Revenue is that the impugned products are 'Veterinary Shampoos' having some subsidiary curative or prophylactic value and in terms of Note 1(d) to Chapter 30 and Note 2 to Chapter 33, they would be classifiable under Heading 33.05 being preparations for use on the hair. On the other hand, the learned Advocate for the Appellants has contended that the impugned products are used to cure pets and animals from lice, ticks, mites and dandruff. The labels on the products clearly mention as under : Canifur : Ayurvedic Veterinary Medicine an anti-dandruff, ectoparasiticidal, hair growth promoter and fur conditioner. Canifur A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso useful to subside the non-specific prusites in dogs……. The application of the Canifur AZ maintained the softness, shineness and lustrous to hair coat condition of dogs". It is thus apparent that the impugned products have therapeutic or prophylactic character which is not subsidiary one and as such these are medicaments and not preparation for use on hair. The use of detergent in substantial quantity is not a relevant factor to decide the classification. In B.P.L. Pharmaceuticals Ltd. (supra) [1995 (77) E.L.T. 485 (S.C.)], the product 'Selsun' contained selenium disulphide only 2.5% and water 75.3%. The Supreme Court held that "once the therapeutic quantity of the ingredients used, is accepted, thereafter it is not possible to hold that the constituent is subsidiary". The Supreme Court recently in Sharma Chemical Works case, 2003 (154) E.L.T. 328 (S.C.) has held that merely because the percentage of medicament in a product is less, does not also ipso facto mean that the product is not a medicament. "Generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. The medicament would necessarily be covered by fillers/vehicles in order to m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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