TaxTMI 
TaxTMI 
TaxTMI 
1997 (9) TMI 529
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...., JJ., in Union of India v. G.D. Pharmaceuticals Limited (F.M.A. No. 163 of 1996 decided on Decem- ber 5, 1996), runs as follows: UMESH CHANDRA BANERJEE, J.-This appeal is directed against an order of the learned trial Judge whereby the learned trial Judge has been pleased to allow the writ application. The contextual facts reveal that for some time past disputes and differences were raised as regards classification of a product named "Boroline". Dispute started as early as in 1961 and continued right up to this date from time to time. The learned trial Judge, relying upon a judgment of the Allahabad High Court in Abdul Mohammed v. State reported in 1977 Crl. L.J. 1325, came to the conclusion that "Boroline" is essentially a drug and the ....
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....t of the tariff items, be it 14E or 14F. Be it noted that tariff item No. 14E was introduced in Tariff Act, 1985, under heading No. 30.3 and 14F under 33.04. Mr. Roy Chowdhury, however, has placed in details both the items, but on a perusal of the same, we do not find any such change warranting a different conclusion on the matter. Basically item No. 14E deals with patent or proprietary medicines not containing alcohol opium Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively Ayurvedic, Unani, Sidha or Homeopathic, and the explanation categorically records that it includes any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the pre....
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....s, cracked nipples, cuts and dry skin diseases, for "external use only". 5.. The learned trial Judge while dealing with the matter recorded that "Boroline" is an antiseptic boric ointment and the chemical composition is as follows: "Boric acid 1 P. 1 per cent. Zinc oxide 1.P. 3 per cent. White petroleum jelly 1.P. and Lanoline anhydrous 1.P. Q.S". The reference to the judgment of the Allahabad High Court by the learned trial Judge, unmistakably depicts that it is a drug. Be it noted that the case was decided under the Drugs and Cosmetics Act, 1940. In that view of the matter, we are not able to lend our concurrence to the submission of Mr. Roy Chowdhury that it is not a medicine but a cosmetic preparation. 6.. Lastly Mr. Roy Chowdhur....
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....ion was in terms of the order of the appellate court dated March 5, 1993 whereby the appellate court directed that the writ petitioners/respondents' goods, being the subject-matter herein, be cleared under the sub-heading No. 33.04 of chapter 33 of the Central Excise Tariff Act, 1985, till the disposal of the appeal, or until further orders, without prejudice to the rights and contentions of the parties. The appellate court, however, was categorical in recording that whatever appropriate notifications there may be under that sub-heading, the respondents will be entitled to get the benefit thereof. It is in terms of the appellate court's order that the goods were cleared under tariff item No. 14F corresponding to sub-heading No. 33.04 of the....
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....ferent heading. There cannot possibly be any waiver or estoppel against the statute but the fact remains apropos the judgment of the Tribunal, of an erroneous classification does not and cannot arise in the facts and circumstances of the matter in issue. The writ petition was pending before this Court and subsequently there was a term of settlement which was filed before this Court directing that the product in question ought to be classified under tariff item No. 14E presently under the Act of 1985. Chapter 30.03, there is no question of erroneous approach neither there is any question of misleading information or not being able to appreciate properly. It was done at the highest level. In any event, the factual score distinguishes the judg....
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.... prescribed to deal with a specific disease like diabetes. Contextual fact reveals that the product in question contains boric acid with zinc oxide, which cannot possibly be termed to be a cosmetic item. In any event, the learned trial Judge has gone into the matter very carefully and detailed out the reasons for his conclusion that Boroline cannot but be termed to be a medicine and not a cosmetic product. 8.. In that view of the matter, we do not find any reason to interfere with the order of the learned trial Judge. The order of the learned trial Judge is therefore sustained. The appeal, therefore, fails and is, accordingly, dismissed without any order as to costs. 9.. Be it recorded that as regards the excess quantum of excise duty pa....