Common parlance test governs Babool Powder classification; Revenue failed to prove toothpowder classification.

Babool Powder was analysed as containing Ayurvedic ingredients and the manufacturer held an ayurvedic licence, so classification turned on whether the product was understood in common parlance as a toilet requisite or as an ayurvedic medicament. The burden lay on the Revenue to support its classification under CET sub-heading 3306.00 by evidence of popular understanding, and no such evidence was produced. Affidavits from doctors, stockists and users supported use for prevention and treatment of dental and oral ailments. The absence of a doctor's prescription was not decisive, and the common parlance test remained controlling. The departmental classification was set aside and the demand and penalties did not survive.

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Issues: Whether Babool Powder was classifiable as a toothpowder or preparation for oral or dental hygiene under CET sub-heading 3306.00, or as an ayurvedic medicament under CET sub-heading 3003.30, and consequently whether the duty demand and penalty could be sustained.

Analysis: The product was shown by chemical analysis to contain Ayurvedic ingredients, and the manufacturers held an ayurvedic licence. The central question was whether the product was commonly understood in the market as a toilet requisite or whether it was understood as an ayurvedic medicament. The burden of proving the classification adopted by the Department lay on the Revenue, and that burden had to be discharged by evidence of common parlance or popular understanding. No such evidence was led. The material placed on record, including supporting affidavits from doctors, stockists, and users, indicated use of the product for prevention and treatment of dental and oral ailments. In view of the later Supreme Court authorities, the absence of a doctor's prescription was not decisive, and the common parlance test remained the governing test.

Conclusion: The product was not proved to be classifiable under CET sub-heading 3306.00 as a toothpowder. The classification adopted by the Department was set aside, the assessee's appeal was allowed, and the Revenue's appeal against deletion of the demand and penalties was dismissed.

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