TaxTMI 
TaxTMI 
2002 (12) TMI 397
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....ised the classification of the product under Chapter heading 3003.30. The findings of that order-in-original is extracted below : "Since there are 2 rival entries, we have to see which is the more appropriate one, we have to determine what is the principal function of the item as against its subsidiary property. To determine whether the product is a Siddha Medicine or not, we have the help of the chapter notes and judicial pronouncements on the subject. As per the chapter notes, the goods must have therapeutic or prophylactic use. As per the certificates of doctors, the hair tonic is effective for scalp strengthening of the hair roots, is effective in diseases like dandruff, ringworm and epidermosclerosis of the face and scalp and has a cooling effect, on the whole body. It was explained orally that in the Indian system of medicine, cooling the system is important in cases where there is extra heat - pitha - generated within the system. As per judicial pronouncements, the medicinal ingredients must find a place in authoritative texts of the Ayurveda/Siddha system and the goods must be known as such by those who deal in them. The said corporation have produced certificates ....
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....y classifiable under 3305.90 as other preparations for use on hair attracting duty at 105%" "For the foregoing reasons, this application is filed for determination of the issue of classification of the said herbal hair tonic and consequently, confirming demand of duty on the same for the period April-September, 1988 which was dropped by the Assistant Collector." "It would be observed from the above that the Assistant Collector has gone beyond the direction of the Collector which is legally not permissible." "The cross-objection, filed by the respondents on the appeal of the department, is also silent with regard to the demand of duty in the department's appeal. It merely prays that the appeal of the applicant, may be rejected and the original classification under sub­heading 3003.30 may be upheld." "In view of the above, I set aside the order of the original authority and remand the case for reconsideration, after issue of a show cause notice to the respondents, as per law. In that, the lower authority would be free to consider any additional evidence which is relevant to the proceedings." (v) The above matter was taken up by the Assistant Commissione....
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....onic was understood by doctors, dealers and users to be primarily a Siddha Medicament." "I am convinced that the product in question is not having therapeutic or prophylactic properties exclusively but substantially have the properties which take care of the hair and beautification of the hair as well." "Tampcol claimed that the items in question are certified by doctors to be useful in treating certain skin disorders of the scalp, preventing hair loss and gives coolness to the eyes and the body system. In this context, Tampcol also produced coies of the Supply Order of the Central Government Health Scheme, Medical Store Depot. While I agree that there may be occasions where the said Hair Tonic might have been prescribed by Doctors and even the CGHS might have indented for the said product, I wish to add that these factors do not by themselves answer the moot point for decision in this proceedings." "I confirm the classification of the Tampcol herbal hair tonic/new improved Tampcol herbal hair tonic and Tampcol Amla Thailam under Chapter 3305.10 as perfumed hair oil and order final assessment of duty accordingly." 3. The appellant had submitted a detailed appeal me....
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....d such ingredients are considered and taken from authoritative books on Indian medicine, as seen from the decision of CCE v. Maneesh Pharmaceuticals Pvt. Ltd. - 1998 (97) E.L.T. 152. (viii) The Drug Controller has confirmed the use of the various siddha ingredients meant for therapeutic use; further there is ample material made available in support that the ingredients used are essentially siddha medicaments; as the product is not sold under any name specified in the siddha text, the product is not a classical siddha medicament but still would be a patent and proprietary siddha medicament. Sub-heading 3003.30 covers both classical as well as patent or proprietary medicaments. The Tribunals have come to the conclusion that the ingredients and their effects as discussed in the authoritative books would be sufficient to classify the same as an ayurvedic or a siddha medicament and that the absence of a specific formula is not material. The Apex Court decision in the case of Amrutanjan Ltd. v. CCE - 1995 (77) E.L.T. 500 (S.C.) would approve the correctness of the Tribunal's decision. (ix) The lower adjudicating authority's reference to certain decisions in ....
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....the impugned product would not be available in a posh commercial establishment where normal cosmetics are being sold but would only be available in shops which sell medicaments and Indian medicines. Moreover, the Drug Controller, the proper authority has confirmed the status of the product as a medicament after proper clinical trials. The impugned product is marketed as a medicament as seen from the packaging. These medicaments are sold as over the counter products and particularly as they are not schedule drugs. Siddha medicaments can be advertised while only the scheduled drugs cannot be advertised. (xv) The coconut oil is used as a medium and thus, the usage of the coconut oil alone would not move the final product from a medicament to a cosmetic; the therapeutic properties of the various ingredients in the mixture would clearly enable classification as a medicament. In the case of Panama Chemical Works where only 3% was active ayurvedic ingredients and the balance being liquid glucose, the Madhya Pradesh High Court held that the product in question was only a medicament - 1992 (62) E.L.T. 241. 4. I have considered the facts and submissions connected with ....
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....d not hair oil. It may be mentioned that the ayurvedic medicament is not a classical one, but yet, would be classifiable only under 3003.30 as a medicament and not under 3305.10 as a cosmetic. This aspect of law, as propounded by the Larger Bench would be directly applicable the facts of the present case. 6. The CBEC vide Circular No. 333/49/97-CX., dated 10-9-97, reported in 1997 (95) E.L.T. T14, has specified as follows : "It has been decided that all assessments of products claimed to be ayurvedic medicaments under Chapter 30 should be re-examined by the Commissioners of Central Excise whether manufactured under a drug licence or not so as to redetermine their classification under the Central Excise Tariff Act, 1985. For the purpose the following facts may be kept in view : * The perception of the product in popular parlance, whether as medicaments or cosmetics/toilet requisite. The advertising, marketing and the manner in which the product is put up may also be taken into consideration. * It may be ascertained that the products claimed to be medicaments, should have substantial therapeutic claims which are not subsidiary in nature and the mode of prescription a....
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....ould be either recognized so in a standard Ayurvedic work or should be so proved by clinical trials or should be recognized so by any authority like DGHS. 10. Formula for medicament as such though not described in any text-book, the relationship of the various ingredients with each other has been narrated therein. Where property of each component is narrated and where their mutual relationship is specified to facilitate creation of components therefrom, the absence of a specific formula may not be material, and the resultant product is only a medicament and not a cosmetic - Collector v. Maneesh Pharmaceuticals Pvt. Ltd. - 1998 (97) E.L.T. 152 (Tribunal). 11. In the absence of statutory definition of ayurvedic medicines, scientific and technical aspect of the product is to be determined with the aid of 'definition' in Drugs and Cosmetics Act, 1940. Active ingredients conforming to standard Siddha texts are sufficient to treat the product as 'Siddha Medicine.' 12. It was held in the case of Ishaan Research Lab. (P) Ltd. v. Collector -2001 (137) E.L.T. 293 (Tri. - Del.) that products intended to cure or prevent ailments or diseases like scalp infections, eczema....