TaxTMI 
TaxTMI 
1997 (1) TMI 298
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....mmissioner and found that the ingredients in the product like urea have uses other than for medicinal purposes as per the condensed chemical Dictionary by Gestener G. Hawley; that even according to one of the documents submitted by the appellants "Uses of urea is cosmetology" use of urea in cosmetic preparation moisturising cream was indicated; that the primary function of the product was that of cosmetic and that is ingredients have only subsidiary therapeutic or prophylactic value, and hence would still be classifiable as a cosmetic preparation as per Chapter Note 2 to Chapter 33 CETA. For the same reason, Commissioner (Appeals) also did not accept the affidavits produced by appellants from skin specialists, also observing that they were identically worded and stereotyped. Commissioner (Appeals) also pointed out that the Deptt. Chemical Examiner had on a test of the sample of the product opined that similar preparations are known to find use for the care of skin, by their function in preventing drying and flaking of the skin. The Commissioner (Appeals) also observed that even assuming that the product will equally merit classification under Heading 30.03 CETA, Rule 3(c) of Rules ....
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.... is such a decision, indicating its use as a medicament, not as a cosmetic product. The Calcutta High Court judgment in the case of G.D. Pharmaceuticals v. UOI [1992 (60) E.L.T. 205 (Cal.)] was cited to argue that the essential character of the product has to be looked into to classify it as a drug or as a cosmetic. 3. Shri S.V. Singh ld. DR presented the department's case and submitted that the Supreme Court judgment in BPL case 9 supra is distinguishable from the present case. There the product was Selenium sulfide lotion VSP containing selenium sulfide as the one active ingredient, sold under brand name selsun. The label on the product indicated that it is medicament for treatment for dandruff, and also that it is to be applied as per doctor's direction. The Condensed Chemical Dictionary of G.G. Hawley refers to selenium sulfide as a medicine for such treatment. That was also a case where the product selsun was all along being classified as medicament by department which sought to change it to classify as product as cosmetic. Here the above aspects are absent, the product in question is only a moisturiser which gives cosmetic effect to skin the ingredients of which are u....
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....or such uses put up in measured doses or in packings for retail sale or for use in hospitals. 30.03 Medicaments (including veterinary medicaments) 3003.10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic. 7. Chapter Note 2(ii) to Chapter 30 says that `Patent or proprietary medicaments' means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications, namely :- (a) The Indian Pharmacopoeia; (b) The International Pharmacopoeia; (c) The National Formulary of India; (d) The British Pharmacopoeia; (e) The British Pharmaceutical Codex; (f) The British Veterinary Codex; (g) The United States Pharmacopoeia; (h) The National Formulary of the U.S.A.; (i) The Dental Formulary of the U.S.A.; and (j) The State Pharmacopoeia of the ....
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....d for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose repelling insects." The Supreme Court observed that we cannot ignore the above broad classification while considering the character of the product in question. 10. The product in question here is called Moisturex and comprises the following constituents : Urea I.P. 10% Propylene Glycol I.P. 10% Lactic Acid I.P. 10% Liquid Paraffin I.P. 10% Cream Base. The container indicates as follows :- "Indications : Ichthyosis Vulgaris, Fissure foot, Dry Scaly Skin conditions." 11. According to the Atalas of Clinical Dermatology by Anthony du Vivier, Physician in charge, the skin department, King's College Hospital, London, (one of the various authorities cited and relied upon by appellants) Ichthyosis Vulgaris is a common disorder that results in widspread scaling of the skin. The condition is thought to be a failure of the normal separation of the epidermal cells from each other as they reach the surface of the skin. Fissures occur on the root due to excessive dryness of the surfa....
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....ermatology and certain authorities have also be cited for the averments made therein. The Supreme Court in the BPL case (supra) has also observed in that case that affidavits cannot be discarded by saying they are identically worded. It cannot be said in this case that all the 3 Affidavits are identically worded. The affidavits serve the purpose of showing that the product has properties which would differentiate it from ordinary moisturising cream. The Commissioner (Appeals) has referred to Hawley's Condensed Chemical Dictionary' to say that urea finds other uses including in cosmetics. He has also found from a paper furnished by the appellants, `Uses of Urea in Cosmetology' as indicating use of urea in cosmetic preparation like moisturising cream. However, it has to be borne in mind that the ingredients of the product having other uses will not make the product not a medicament if it satisfies the definition thereof. There is evidence to show that urea is contained in the product in therapeutic quantity. Further, in the paper `uses of urea in cosmetology' it is stated. "For cosmetic purposes, concentrations of 4 to 10% urea are considered sufficient to induce the desired effects.....