9911796707
TMI Blog2005 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... eshkalapini (13) Dhavaldanti 3. The department contends that the above listed goods fall under Chapter 33 and accordingly confirms the demand for duty under that chapter as cosmetics or toilet preparations. Hence these appeals. 4. Heard both sides. 5. The learned advocate, Dr. D.M. Mishra, on behalf of the appellants, contends that the manufacturers hold a drug licence for manufacture of ayurvedic medicaments; that the Directorate of Ayurved, Maharashtra State, certified that the products are ayurvedic medicines; that the products are manufactured exclusively out of ingredients prescribed in the authoritative ayurvedic text books and/or formula prescribed therein; that the ayurvedic ingredients used in each of the products have been mentioned on the labels; that the products are recommended by medical practitioners for treatment of specific ailments; that dosages are also specified on the labels and were recommended for use only for a limited period; that various affidavits and certificates of doctors and chemists clearly establish that the products in question are ayurvedic medicaments; that the products are sold from chemists shop; that a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparation; that the products are preparations for the care of skin or hair; that the Board's Circular No. 333/49/97, dated 10-9-1997 specifies detailed guidelines for classifying the products of this nature; that these guidelines have been followed by the adjudicating authority to confirm the classification of the impugned goods under Chapter 33 as cosmetics and toilet preparations and the impugned order is based on the following case law :- (1) Shree Baidyanath Ayurved Bhavan Ltd. v. CCE, Nagpur [1996 (83) E.L.T. 492 (S.C.)] (2) Alpine Industries v. CCE, Delhi [1997 (92) E.L.T. 53 (T)] (3) Richardson Hindustan Ltd. [1988 (35) E.L.T. 424 (T)] (4) CCE, Mumbai v. Muller Phipps Ltd. [2000 (126) E.L.T. 856 (T)]. 8. We have heard the rival submissions and perused the records. 9. The issue regarding classification of goods under the rival chapters has been a subject matter of dispute for some time now. The Board in the circular dated 10-9-1997 cited supra, has directed the field formations to keep the following factors in mind while classifying the products under Chapter 30 or 33 of CETA, 1985 :- "(a) The perception of the product in popular parlance, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeth and gums for cosmetic effect. The lower authorities held, therefore, that the goods are correctly classifiable under Heading 33.05 etc. We observe that it is the appellant who is seeking the benefit of notification and, therefore, it is up to him to adduce evidence to show how he is entitled to the benefit of Notifications 8/94 and 75/94. They seek to discharge the burden by filing affidavits/certificates. 12. The appellants have placed heavy reliance on the Supreme Court's decisions in the case of BPL Pharmaceuticals Ltd. v. CCE, Vadodara [1995 (77) E.L.T. 485 (S.C.)], Amrutanjan Ltd. v. CCE [1995 (77) E.L.T. 500 (S.C.)] etc. We, however, find that these decisions do not help the appellants. In the BPL Pharmaceutical's case, the Supreme Court was dealing with a product called 'Selsun' used for treatment of dandruff. The Hon'ble Court held it to be a medicament classifiable under Chapter 30. We find that in that case, the department itself was classifying the product as medicament, but suddenly changed the classification as cosmetic product. In paragraph 39 of the judgment, the Apex Court concluded as follows:- "On a perusal of the entire material we are satisfied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a skin care cream used for the care of the lips and is therefore liable to be classified under Chapter Heading 33.04 as per Note 2 read with Note 5 of Chapter 33 and not as medicament under heading 30.03. The Hon'ble Supreme Court found that the product is essentially a protective/preventive preparation for chapping of lips though incidentally it may have curative effect on cracked and chapped lips. The Court held in that case that the product is not only used by soldiers in high altitudes but it is used as a protective cream in cold weather or against bright sun. The Court held that certificates issued by the Army authorities and chemical ingredients of a product are not decisive. Insofar as classification of goods for levy of central excise duty, commercial parlance theory is applicable for classification of products under the tariff. The Apex Court did not agree that a protective cream or a barrier cream which is used against skin irritants is a medicament falling under Chapter 30. In another case of Sunny Industries Pvt. Ltd [2003 (153) E.L.T. 259], the Supreme Court was dealing with classification of 'AD-Vitamin Massage Oil Forte' containing A and D vitamins. The Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
