TaxTMI 
TaxTMI 
2009 (5) TMI 194
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.... 2. We have heard at length the learned Advocate for the assessee as well as the learned DR for the Revenue in these matters. We have perused the records. 3. Both the appeals arise from a common order passed by the Commissioner (Appeals) on 12-3-2004 in the matter of dispute pertaining to the classification of the products namely Brahmi Amla Oil and Ayur natural hair wash. In relation to the issue pertaining to the classification of the said products, two show cause notices came to be issued to the assessee, one on 15-5-1997 and another on 20-6-2001. Under the said show cause notices, the assessee was called upon as to why the duty should not be confirmed by classifying the products to be cosmetics, and therefore classifiable under tarif....
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....) E.L.T. 748 (Tribunal), CCE, Calcutta v. Sharma Chemical Works reported in 2003 (154) E.L.T. 328 (S.C.), CCE, Nagpur v. Vicco Laboratories reported in 2005 (179) E.L.T. 17 (S.C.), Pankajakasthuri Herbals India (P) Ltd., v. CCE, Thiruvananthapuram reported in 2006 (194) E.L.T. 90 (Tri.-Bang.), Herbal Products v. CCE, Calicut reported in 2002 (146) E.L.T. 126 (Tri.-Bang.) and in Meghdoot Gramodyog Sewa Sansthan v. CCE, Lucknow reported in 2004 (174) E.L.T. 14 (S.C.) submitted that the evidence produced by the assessee clearly establishes the products to be Ayurvedic medicine and therefore no fault can be found with the orders passed by the Collector (Appeals) in the matter in hand. He further submitted that the materials placed on record by ....
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....ailment is cured. The approach of the consumer towards the product is very material. One may buy any of the ordinary soaps available in the market. But if one has a skin problem, he may have to buy a medicated soap. Such a soap will not be an ordinary cosmetic. It will be medicament falling in Chapter 30 of the Tariff Act. (ii) Are the ingredients used in the product mentioned in the authoritative textbooks on Ayurveda?" 7. The Apex Court has repeatedly warned the department about the test to be applied for classification of products in order to ascertain whether the same is ayurvedic medicine or not. It clearly requires the Department to primarily find out whether the product is medicament as is understood in common parlance. While d....
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....vedic medicine under authoritative books. In that regard attention was drawn to the copies of those certificates and the title of the books placed on record. Attention was also drawn to the first schedule of the Drugs and Cosmetics Act, 1940, while contending that the title of the books clearly reveal that they bear the same name as disclosed in the said schedule. 10. At the outset, it is to be noted that the first schedule to the Drugs and Cosmetics Act, 1940 and list about 84 items under Part 'A' and 13 items under Part 'B', part 'A' refers to Ayurvedic and Siddha Systems whereas part 'B' refers to Unani Tibb system. The schedule is prepared in terms of Section 3(a) of the Drugs and Cosmetics Act, 1940. The said provision of law explai....
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....h various products are differently classified in New Tariff Act. Resort should, in the circumstances, be had to popular meaning and understanding attached to such products by those using the product and not to be had to the scientific and technical meaning of the terms and expressions used. The approach of the consumer or user towards the product, thus, assumes significance. What is important to be seen is how the consumer looks at a product and what is his perception in respect of such product. The user's understanding is a strong factor in determination of classification of the products". 12. Referring to facts of the case before the Apex Court in Shree Vaidyanath Ayurved Bhawan Ltd., the Apex Court clearly observed that- "We find i....
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....me as expeditiously as possible after hearing the parties, and on analogies of the entire materials on record in proper perspective. 15. Before we are part of the matter, it is necessary to deal with one of the issue sought to be raised on behalf of the appellants and that is relating to burden of proof in the matter of classification of the product. Undoubtedly, it is settled law that burden in that regard primarily lies upon the department. But concept of burden of proof in this regard should not be construed to mean that mere failure to produce evidence by the Department will prevent the Department from relying upon the evidence produced by the assessee in order to enable it to discharge its burden. In another words, the burden regard....