9911796707
TMI Blog2005 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... 9B of the Central Excise Rule, 1944. The sample drawn on 19-3-1996 by the Superintendent, Central Excise was tested. After due enquiries four Show Cause Notices were issued seeking classification of the product under sub-heading 3304.00 as preparation for care of skin instead of medicaments as declared under 3003.10 and recovery of duty under Section 11A of the Central Excise Act, 1944 were proposed while finalizing the assessment. 1.3 The matter was adjudicated. The assessment classification under sub-heading 3304.00 finalized duty demands confirmed by the Asst. Commissioner later confirmed by the Commissioner (Appeals). Hence this appeal. 2.1 In the order impugned the lower authority after analyzing the material, has held - ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m base-q.s. It is also stated on the printed pamphlet of the sample as "Expert skin care from Vaseline Research-Vaseline Heel guard: A unique 4 in one solution for cracked heels specially developed by scientists at Vaseline research. It works in 4 steps to smooth out the cracks making your heel soft again." In the Technical Books here Triclosan is stated to show activity against gram-positive, gram-negative micro organisms and also against yeast fungi. Lactic acid with certain bacterial properties is stated to be used for acidifying the cosmetics and in cleansing creams to maintain the Ph of the skin. Salycylic acid is described as a keratolytic substance having bacteriostalic and fungicidal properties used in the treatment of fungu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in on Heel. The pamphlet nowhere talks about curing the cracked heels as claimed by the assessee when asked at the time of personal hearing whether the product was put up as having antifungal or antiyeast properties, the reply was in the negative ..." 2.4 The order of the Asst. Commissioner the logic therein have been confirmed by the C.C.E. (A). The logic of the A.C. that the entity is not a medicine, because no medicine can be recommended for regular use, after studying the usage prescribed in the instructions pamphlet thereafter recognizing that a drug would include all medicines for internal external use of human beings and substances intended to be used for in the diagnosis treatments, mitigations or prevention of disease and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h we would uphold the distinction in cosmetic drug in the tome relied. The same distinction is brought out by Note 1(d) of Chapter 30 on Medicaments Note 2 of Chapter 33 on cosmetics. We find that the question of usage will be related to the effect of the therapeutics or mitigating substance or prophylactics substances added. If the effect of mitigation of an external condition is primary effect the effect of smoothing the skin secondary then the entity would be a Medicament under Chapter 30; if the roles are reversed, then chapter Note 2 of Chapter 33 would call for classification under Chapter 33. The question is vital to determine, whether the role of the ingredients especially Salycylic Acid I.P is secondary or primary. The ld. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 'Boroline Cream' containing Boric Acid with Zinc Oxide which was classified under erstwhile Tariff entry 14E as Patent Proprietary Medicament and which remains classified under Chapter 30.03 (see UOI v. G.D. Pharmaceuticals Ltd. - 1998 (100) E.L.T. 24 (Cal.) upheld by S.C. in 1999 (108) E.L.T. A56. Following this settled position in law for classification of 'Barrier Creams' medicated, as found in this case, we found no merits in the grounds urged before us by the assessee that it is not a Barrier cream, therefore upholding the finding of the lower authority that the entity 'Vaseline Heel Guard' to be a 'Barrier Cream', albeit medicated with prophylactics therapeutics ingredients, it would merit classification under Heading 30.03 n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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