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Issues: Whether prickly heat powder containing boric acid, salicylic acid and zinc oxide was classifiable as a patent or proprietary medicine or as a cosmetic and toilet preparation under the erstwhile tariff.
Analysis: The decisive enquiry was the true identity and essential character of the product in the light of the amended tariff entry, especially Explanation II to Item 14F, which brought within cosmetics and toilet preparations goods that contain only subsidiary pharmaceutical or antiseptic constituents or are held out as having subsidiary curative or prophylactic value. The composition of the product, the nature of its presentation, the absence of prescription warnings or dosage, and the international classification materials considered by the Harmonized System Committee all indicated that the medicinal ingredients were present only in low and subsidiary concentration. The Tribunal also found that the product was known and used in the market as a talc-based skin-care powder to prevent prickly heat, rather than as a medicine with primary therapeutic character. The fact that the product was manufactured or sold under a drug licence did not control the tariff classification once the amended excise entry was applied.
Conclusion: The product was not classifiable as a patent or proprietary medicine; it was classifiable as a cosmetic and toilet preparation under Item 14F and the corresponding HSN heading.
Ratio Decidendi: Where the medicinal ingredients in a preparation are only subsidiary and the product's curative or prophylactic value is also subsidiary, the product falls within cosmetics and toilet preparations under the amended tariff entry notwithstanding drug licensing or limited therapeutic use.
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