TaxTMI 
TaxTMI 
1985 (6) TMI 193
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....he First Schedule to the Central Excises and Salt Act, 1944, but considered as not excisable to duty by virtue of the express exclusion in the description of the Tariff Item itself in favour of "medicines" which are exclusively Ayurvedic, Unani Sidha or Homoeopathic. 3. Immediately after March 1, 1975, when a residuary item being Item No. 68 came to be introduced into the Central Excise Tariff Schedule for "All other goods, not elsewhere specified..." the Excise Department took the view that Ayurvedic Medicines even though they were specified under Tariff' Item 14E (Albeit for the purpose only of exclusion) were now classifiable under Tariff Item 68. Pursuant to this view the appellant submitted a classification list in respect of Ayurvedic medicines manufactured by it (including Dant Manjan Lal) and started paying duty leviable thereon under Tariff Item 68, C.E.T. in accordance with the prescribed procedure. 4. On 1st March, 1978, the Government of India issued an exemption Notification, being Notification No. 62/78 whereby the total duty exemption hitherto provided under Tariff Item 68 on goods specified in the Schedule appended to Notification 55/75-C.E., dated 1....
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....Sodhi Harre (containing Citric Acid), Swet Parpati (containing Potassium Nitrate, Alum and Ammonium Chloride) should not be classified under Tariff Item 14-E because they contain allopathic ingredients and thus not being purely Ayurvedic in character be charged to duty at the Tariff rate under Tariff Item 14-E CET? 9. In response to the show cause notice Shree Baidyanath Ayurved Bhawan Limited submitted their written reply on 15-3-1980 as under : ,- (i) 'Dant Manjan Lal', 'Dant Manjan Black' and 'Dant Manjan White' are all Ayurvedic medicines containing Ayurvedic ingredients and manufactured under their Ayurvedic licence No. 31/76. (ii) That Ayurvedic drugs and medicines are completely exempted from the purview of Tariff Item 68. (iii) That Menthol is included in many Ayurvedic medicines and so its inclusion does not change the Ayurvedic character of the medicine like Himalaya Surma, Moti Surma, Netra Mrita Surma, and Agnimukh Churan. All these products are also manufactured under Ayurvedic Licence No. 31/77 and that menthol is commonly known in Ayurved as pepperment which is an Ayurvedic ingredient. (iv) That Atualshaktidata contains faulad burada (steel) which....
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....urma, Moti Surma, etc. were also held as Ayurvedic medicines by observing as under : - "Presence of small ingredients which are Allopathic in nature cannot take away the medicines from Ayurvedic group so long as the products are by large Ayurvedic in nature. Since all the products of the appellant in dispute are medicinal preparations, they are correctly classifiable under Item 14-E CET. However, this tariff itself specifically excludes Ayurvedic and other types of medicines from the levy of excise duty." 15. As the show cause notice was with regard to 14 items only and that Assistant Collector classified 150 items, the Appellate Collector held that only 14 items were to be classified and classification done in respect to those products not mentioned in the show cause notice were held invalid on the principles of natural justice. 16. During the course of the proceedings before the Appellate Collector of Central Excise, Calcutta, regarding the classification of Baidyanath Dant Manjan and Surmas etc. the Preventive Staff of the Central Excise Department visited the premises of Shree Baidyanath Ayurved Bhawan Limited on 3-4-1981 and found that the factory had discon....
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.... by his Order-in-Original No. 49-MP/82, dated 26-8-1982 directed Shree Baidyanath Ayurved Bhawan Ltd. to pay duty amounting to Rs. 18,86,122/- on 'Dant Manjan Lal' manufactured and cleared by them under Rule 9(2) of the Central Excise Rules read with Section 11-A of the Central Excises and Salt Act, 1944. He also imposed upon Shree Baidyanath Ayurved Bhawan Ltd. a penalty of Rs. 10,000/-under Rule 173-Q of the Central Excise Rules. 19. Aggrieved by the said order passed by the Collector of Central Excise, Patna, on 26-8-1982, Shree Baidyanath Ayurved Bhawan Ltd. filed an appeal before this Tribunal which was registered as Appeal No. E-248/82-C. 20. The Collector of Central Excise, Patna, challenged the order passed by the Appellate Collector of Central Excise, Calcutta, being No. 372/BR/82, dated 13-10-1982, who had classified these Dant Manjansunder Tariff Item 68, CET and exempted under Notification No. 55/75, dated 1-3-1975 as amended by Notification No. 62/78, dated 1-3-1978. The classification regarding the Surma Group of medicines under 14-E (CET) but excluded being exclusively Ayurvedic Drug was also challenged in the appeal. That appeal was registered as App....
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....e name of Shree Baidyanath Ayurved Bhawan Limited and as such these are 'Patent or Proprietary Medicines' as mentioned in Tariff Item 14-E (CET), but not excluded as these are not exclusively Ayurvedic Medicines. She pointed out that this symbol is a registered trade mark of Shree Baidyanath Ayurved Bhawan Ltd. According to her, it may be a drug or medicine but not exclusively an Ayurvedic Medicine as defined in Section 3(a) of the Drugs and Cosmetics Act, 1940. The definition of Ayurvedic drug as given in Section 3(a) ibid cannot be ignored by the fact that these Manjans, are being manufactured under a drug licence issued under the Drugs and Cosmetics Rules and that the Vaids and Hakims describe them as Ayurvedic Drugs, They may be drugs but not particularly Ayurvedic drug as per this definition and hence cannot be excluded from Tariff Item 14-E, (CET). 27. She also drew our attention towards the definition of 'Patent or Proprietary Medicines' as given in Section 3(h) of the Drugs and Cosmetics Act, 1940 (as amended) which, according to her, is in pari materia with the definition given in Explanation I appended to Tariff Item 14-E, CET. As per this definition Patent or Pro....
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....y it is called 'Manjan', which means a cleanser. Just to say it has got some preventive quality or that all ingredients are Ayurvedic in nature and find mention in the authoritative books of Ayurvedic system specified in the First Schedule of the Drugs and Cosmetics Act, 1940 does not make the 'Manjan' i.e. the tooth powder as an Ayurvedic medicine. These Dant Manjans are not available in a medicine shop and no prescription is needed from a doctor for its use. They are available even in a grocery shop. How these Manjans can be treated as Ayurvedic medicine in common parlance is not understandable, argued Mrs. Zutshi. 'Dant Manjan' is an article of every day use meant for rubbing and cleaning teeth as an indispensable daily hygiene intended to protect the teeth and preserve them in good condition. She cited a judgment of the Supreme Court in the case of M/s. Sarin Chemicals Laboratory v. Commissioner of Sales Tax (AIR 1971 SC 65) in which it has been held that tooth powder in common parlance is considered as a toilet article. She further argued that Shree Baidyanath Ayurved Bhawan Limited stopped paying duty on the product from' March, 1978 unilaterally. They should have filed a dec....
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....ions in the appeal filed by Shree Baidyanath Ayurved Bhawan Limited, the department took up this stand that the proper classification of Dant Manjans' should be under Tariff Item 14-E (CET) as patent or proprietary medicine'. The department now cannot .change its stand from Tariff Item 68 to 14-E (CET) as it has neither filed cross objections nor filed any appeal pleading that the proper classification of the product is under Tariff Item 14-E (CET) as 'patent and proprietary medicine'. The only challenge made by the department was that Baidyanath Dant Manjans were not entitled to the benefit of exemption Notification No. 62/78 as they were not Ayurvedic drug or medicine. 34. He cited a decision of the Supreme Court, namely State of Kerala v. M/s. Vijay Stores [1979 (1) SCR-538] in support of his contention that where a party has neither preferred his own appeal nor filed cross objections in the appeal preferred by the appellant, he must be deemed to be satisfied with the decision of the lower authority. Two more decisions, one of Gujarat High Court in the case of F.Y. Khambhaty v. Commissioner of Income Tax, Gujarat (61 ITR 30) and the other of Bombay High Court in the case....
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....tem 68-CET and is entitled for exemption under Notification 55/75 as amended by 62/78 dated 1-3-1978. 39. Shri Engineer submitted that the Dant Manjans manufactured by the appellant are mentioned in the authoritative publication, 'Ayurved Sar San-graha'. He drew our attention towards the correspondence between the appellant company and the Government of India, Ministry of Health & Family Welfare to show that it is under the active consideration of the Government of India to include the book titled "Ayurveda Sar Sangraha" in the First Schedule to the Drugs and Cosmetics Act, 1940. 40. Shri Engineer argued that if 'Dant Manjans' manufactured by the appellant do not fall within the definition of 'Ayurvedic drug' as mentioned in Section 3(a) of the Drugs and Cosmetics Act, 1940 they definitely come within the purview of Section 3(b) of the Drugs and Cosmetics Act, 1940, which defines 'drug'. It is a medicine which is intended to be used for mitigation or prevention of disease in the teeth of human beings and is covered under exemption Notification 55/75 as amended by 62/78, dated 1-3-1978. 41. Shri Engineer argued that it is an admission on the part of the Senio....
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....ct is sold and brought more for medicinal purpose and for the therapeutic value, the product has to be treated as medicine of the variety known as 'Ayurvedic'. Shri Engineer pointed out that Shree Baidyanath Ayurved Bhawan Ltd., Patna had put reliance on the certificates issued by the Director of Health Services, Bihar, Patna and highly qualified and eminent Hakims and Vaidyas in the country but they were not considered by the Collector of Central Excise, Patna while passing the Order-in-original No. 49/MP/82, dated 26-8-1982. Since the subject goods are claimed to be medicines it is the evidence only of Hakims and Vaidyas or of authorities technically qualified to express an opinion on what precisely are medicines which is relevant for the purpose of their classification and not the opinion expressed by layman or by the public at large. He cited a decision of the Supreme Court reported in AIR 1963 SC 665 in which it was held that the definition of drug in the Drugs Act, 1940 is comprehensive enough to take in not only medicines but also substances intended to be used in the treatment of diseases of human beings or animals. The said preparations are compounded with ingredients whic....
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....t' is sold on the counter to the public rather than to the physician and medical institutions. Dant Manjans though are also available at the grocery shops but they do not lose their character as drug/medicine. They have got medicinal value. Another decision of Allahabad High Court in the case of Commissioner of Sales Tax v. Gramudyog Karyalaya [1979 (44) STC 270] was also cited before us wherein His Lordship observed as under :- "The word 'medicine' has not been statutorily defined and, as such, the meaning given in common parlance has to be attributed to it. A medicine is a substance or preparation used in the treatment of diseases and must have a curative power so as to make it effective for treatment of ailments. It need not be used in the very form in which it naturally occurs. It will retain its character as a medicine even though some processing is required before it becomes fit for use by human beings or other living creatures. Jari bootis are medicinal herbs, which are found in forests. They possess medicinal properties. The fact that they cannot be used straightway as a medicine, but required being reduced to powder or changed into some other form, or combined with o....
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....ed upon the following decisions, namely, (i) Murugun & Co. v. Dy. Collector of Central Excise, 1977 E.L.T. J 193; (ii) Sechasayee Paper and Boards Ltd. v. Collector of Central Excise, 1979 E.L.T. J 223; (iii) Acme Metal Industries Pvt. Ltd. v. S.S. Pathak, 1980 E.L.T. 156; (iv) Dabur Private Ltd.- 1980 E.L.T. 117 (GOI). 49. Shri Engineer also challenged the decision of the Collector of Central Excise with regard to invoking rule 173-Q for the purpose of imposing penalty on the appellants. According to Shri Engineer, Rule 9 by itself is a complete code and when the authorities have made use of this rule invoking the provisions of rule 173-Q, imposing penalty is illegal and more particularly when there is nothing on record to show and prove that the appellant had intentionally or deliberately avoided payment of excise duty. He relied upon the decision of the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa (1978 E.L.T. J 159) in support of his contention that no penalty should be imposed for technical or venial breach of legal provisions or where the breac....
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.... patently barred by limitation. 51. Shri Engineer also argued that when the items are specified in any of the Tariff for the purpose of taxability or for exemption from tax, they cannot be taxed under Item 68, which is a 'residuary item'. For this purpose reliance was placed on the judgment of Gujarat High Court in Darshan Hosiery's case (1980 E.L.T. J 390) wherein it has been laid down as under : "In our opinion, the simple expression "not elsewhere specified" which the Parliament has used in item 68 means total omission or failure to specify either for the purpose of taxability or for the purpose of exemption from taxability. Once an article or goods are found specified in any of the proceeding entries irrespective of the purpose for which they are specified item 68 does not come into play and does not render such goods taxable." 52. As per the contention of Shree Baidyanath in view of the fact that Ayurvedic medicines are mentioned in item 14-E, they got excluded from the purview of item 68 in view of the judgment in Darshan Hosiery's case. It was only on 18-6-1980, the Parliament introduced an explanation and the effect of this amendment is that with effect f....
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....'Patent or proprietary medicine' as explained in Explanation I added to Tariff Item 14-E 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 notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958) or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person." 57. In view of this Explanation, in order to bring a product under this tariff item several factual things have to be proved and this cannot be done unless and until an o....
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....) and Unani (Tibb) systems of medicine specified in the First Schedule ;' According to Shri Engineer this definition uses the word 'includes' and renders it wide enough to include all medicines prescribed or used and gained recognition in the field of medicine. Although the 'Dant Manjans' manufactured by Shree Baidyanath Ayurved Bhawan Limited have not been mentioned, processed and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic system of medicines specified in the First Schedule to the said Act, but all other ingredients find mentioned in the authoritative books of Ayurvedic system of medicines specified in the First Schedule and as such 'Dant Manjans' which are compound of these Ayurvedic medicines should also be treated as Ayurvedic medicines. 63. It is also contended that apart from medicine as such the term 'drug' as defined in Section 3(b) of the Drugs and Cosmetics Act, 1940 includes all substances intended to be used for mitigation or prevention of disease in human beings and all such drugs are exempted under Notification No. 62/78-CE. 64. We are unable to accept the contention of Shri Engineer as....
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....nactment. The main object of the Drugs and Cosmetics Act, 1940 is to prevent manufacture of the products covered by the Act in a sub-standard manner. Ayurved drugs have been brought under the Drugs and Cosmetics Act, 1940, in the year 1969. The object of the Excise Act is to raise revenue, and for this purpose to classify substances according to the tariff entries or according to general usage and known denominations of trade and therefore, for the purpose of classification under the Central Excise Tariff, the provision contained in Drugs and Cosmetics Act cannot be resorted to. In a case of Bombay High Court, Cadbury Fry v. Union of India (Misc. Petition No. 202/71, dated 1-9.1977) decided by Mr. Justrae Kawa, the court set aside an order of the customs authority which had interpreted the word "food" occurring in item 21(2) of the Schedule to the Indian Tariff Act, 1934 in the light of the definition of the word "food" in the Food Adulteration Act, 1954. 69. The question, therefore, is whether 'Dant Manjans' manufactured by Shree Baidyanath are considered in common parlance as Ayurvedic medicine or drug as claimed by them ? 70. Allahabad High Court in the case of C....
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....the therapeutic value, the product has to be treated as medicine of the variety known as 'Ayurvedic'. 72. A 'medicine'/'drug' as known in common parlance is a substance or preparation used in the treatment of diseases and must have a curative power so as to make it effective for treatment of ailments. 73. The main thrust of the argument of Shree Baidyanat Ayurved Bhawan Limited is that all the ingredients of its 'Dant Manjans' are exclusively Ayurvedic medicines for the treatment of mouth and teeth diseases and as such its Dant Manjans are also Ayurvedic medicines. 74. We do not agree with this-contention of Shree Baidyanath. 75. The end product should not be known by its ingredients. Hon'ble Supreme Court in the case of Delhi Cloth Mills v. State of Rajasthan (1980 E.L.T. 383) held that a commodity should be considered as a whole and should-not be classified only from the point of view of one of the elements that go in the marking of it, however, important that element may be. 76. In the case before us, the end product is 'Dant Manjan' in a powder form. Allahabad High Court in the case of Commissioner of Sales Tax, U.P. v. Sarin Chemicals (2....
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....only the principal function, the cleansing of the teeth, which includes the prevention of layers of muous, plaques that gives them an appearance of yellowness. Dentifrices are not functionally antiseptic but in cleansing teeth they serve as detergents for teeth and mucous membrances of the mouth since water is usually used to dispose of the dentifrice after brushing......... 78. In the presence of these authoritative pronouncements it hardly lies in the mouth of Shree Baidyanath that its product Dant Manjans which is essentially nothing but a tooth powder is a medicine or drug. 79. Now, coming to the ingredients namely Peepal, Kali Mirch, Sonth, Tambakuh, Peppermint, Kapur (camphor) Clove Oil (Long Tel) and Geru, used in the manufacture of Dant Manjan Lal though they have therapeutic properties in the pharmacopial books but their compound i.e. 'Dant Manjan' cannot be said to be a medicine having a curative power so as to make it effective for treatment of ailments Peepal, Kali Mirch, Sonth and Peppermint are daily used in our houses as spices for cooked vegetables. Can cooked vegetable be termed as a medicine is a question which can never be answered in affirmative.....
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.... regular use of Dant Manjan Black and Dant Manjan White checks dental decay and keeps the teeth sparkling white and in respect to 'Dant Manjan Lal' they have declared that it prevents and cures dental troubles and maintains the gum tissues in healthy condition, but the Assistant Collector of Central Excise, Division Patna, taking into account the common parlance test rightly held in his Order-in-Original No. 2. Val./Classification List/82, dated 30-4-1982 that in the public and even in commercial understanding these Manjans are understood as tooth cleaning powder and not as medicine. 84. As has been stated above a medicine is a substance or preparation used in the treatment of diseases and must have a curative power so as to make it effective for treatment of ailments. In view of this definition of 'medicine' none of the ingredients of Dant Manjans manufactured by Shree Baidyanath Ayurved Bhawan can be termed as medicine in common parlance. Calling a Dant Manjan i.e. tooth powder as a medicine will be beyond the understanding of a common man who, uses it daily to clean his teeth. 85. The certificates issued by the Director of Health Services, Bihar, and by the recog....
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....actured by Baidyanath Ayurved Bhawan can be said to be a 'medicine' or a 'drug' in common parlance. No doubt, they might be having some therapeutic value as shown in the Ayurvedic books but in common parlance none of these ingredients can be called as a medicine. A common man will not call Peepal, Kali Mirch, Sonth, Tambakuh, Peppermint, Kapur, Long Tel and Geru etc. as medicines and hence in common parlance Dant Manjan which is a compound of these ingredients cannot be called as a medicine or a drug. The technical meaning of these ingredients given in the Ayurvedic Books cannot be taken note of while holding these ingredients as medicine in common parlance. It is not the case of Shree Baidyanath Ayurved Bhawan that Dant Manjan as such is mentioned in recognised Ayurvedic Books as mentioned in the First Schedule. It is only the various ingredients that find place in the treatises. These ingredients cannot be called medicines in common parlance. So certificates and affidavits given by the Vaidyas do not advance the case of Shree Baidyanath Ayurved Bhawan Limited in the absence of any evidence on record to show and prove that the common man who uses this Dant Manjan daily to clean hi....
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....late Collector, Calcutta, about the use of these Dant Manjans, it is pertinent to note that the Appellate Collector has not given his source of enquiry. He has also not mentioned from whom he had made enquiries and whether any opportunity was given by him to the parties to be associated with such enquiry. The Appellate Collector is a quasi-judicial authority and he is not supposed to conduct enquiry in this way on the back of the parties. Judicial or quasi-judicial authorities are not to become witnesses in the cases to be tried by them. They are not supposed to introduce some matter in the case on their personal knowledge. No reliance can be placed on this private enquiry alleged to have been made by Shri H. Yumkhawthng, Appellate Collector of Central Excise, Calcutta, as he has not made available the material gathered during the enquiry. 89. Regarding the alleged admission made by the S.D.R. Mrs. Zutshi, during the course of arguments that this product i.e. Dant Manjan is a 'patent or proprietary medicine' we find it difficult to agree with Shri Engineer, the learned counsel for Shree Baidyanath Ayurved Bhawan Limited that on the basis of this admission, the case be decid....
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.... made by the counsel is not binding upon the party. 93.  The plea of Shree Baidyanath Ayurved Bhawan that the said preparations are manufactured by it on the authority of a drug manufacturing licence and the sale of the product has been authorised by the Food & Drug Control Administration also does not help Shree Baidyanath Ayurved Bhawan to establish that their product is a medicine for the purpose of taking benefit in Notification No. 62/78-C.E. 94. The Drugs and Cosmetics Act, 1940 is a distinct and separate enactment and no provision of it has been incorporated or referred to in the Central Excise Act, 1944 or Central Excise Tariff which is also a separate enactment. The main object of the Drugs and Cosmetics Act, 1940 is to prevent manufacture of the products covered by the Act in a sub-standard manner. Ayurvedic drugs have been brought under the Drugs and Cosmetics Act, 1940 in the year 1969. So, the mere issue of licence of manufacturing this product under the Drugs and Cosmetics Act, 1940 and regulating the procedure of the sale of the products manufactured under this Act, does not mean that the product so manufactured becomes a drug or a medicine by itself.....
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....payable under a particular tariff item. In other words, payment of duty under a particular tariff item must depend upon the facts of the case and not on the advertisement gimmick of the advertiser". In the case of Abbot Laborator (1981 ECR 428 D) though 'Selsun' was described in the trade literature by the manufacturer as 'Shampoo', it was held to be a mere trade gimmick and since its use was really for removal of dandruffs and mild dermatitis, it was held to be a medicine falling under Item 14-E. So, this type of label on the containers of the Dant Manjans manufactured by Shree Baidyanath Ayurved Bhawan Limited does not advance the case of Shree Baidyanath Ayurved Bhawan to establish that these Dant Manjans are treated as medicine in common parlance. 99. If, for argument's sake, we resort to the definitions of 'drugs' as given in Section 3(a) and 3(b) of the Drugs and Cosmetics Act, 1940, even then the product manufactured by Shree Baidyanath i.e. Dant Manjans cannot be said to be a drug or medicine. Section 3(a) of the Drugs and Cosmetics Act, 1940 provides that :- "Ayurvedic or Unani drug includes all medicines intended for internal or external use for or in the diagn....
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....yanath passed by Shri S.K. Bhatnagar, Appellate Collector, Central Excise and Customs, New Delhi, in the case of M/s Hamdard Laborites reported in 1981 ECR 596 D, and that of Shri B.N. Rangwani, the then Collector, Central Excise, Calcutta in Order-in-original No. 329/14-E/82/Collector/12/83, dated 31-1-1983 and-that of Civil Judge, Thane in the case of Vicco Vajradanti do not advance the case of the appellants in any way. The judgment passed by Shri Bhatnagar is in appeal before this Tribunal and the other two judgments are also not binding on the Tribunal which have little significance in the presence of the authoritative pronouncement of the Hon'ble Supreme Court in Sarin Chemical Laboratories (Supra). Some other judgments cited by Shree Baidyanath holding 'Boroline' and 'water' meant to be dissolved for administering injection in human being as 'drug' also do not help Shree Baidyanath in the present case. 'Dant Manjan' was not the product in dispute in those cases. As has been laid down by the Allahabad, Bombay and Madras High Courts in the cases referred to above and confirmed by the Hon'ble Supreme Court in the case of Sarin Chemical Laboratories (Supra) a tooth powder though....
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....nal 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 notified in this behalf by the Central Government in the Official Gazette, or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person." 108. In the case before us, there is no dispute that these products manufactured by Shree Baidyanath are sold in the market as medicines bearing the name of Baidyanath and the symbol of 'SHIVLING'. During the course of arguments, the learned counsel of Shree Baidyanath admitted that the symbol of 'SHIVLING' is a registered mark of Shree ....
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....d by Shree Baidyanath that they are used for treatment of eye troubles. In commercial parlance they are also medicines and also used by the public as medicines. This fact has not been disputed by the Senior Departmental Representative. It has been laid down by the Hon'ble Supreme Court in the case of Taj Mahal Hotel (Supra), where the definition of a word has not been given, it must be construed in its popular sense, if it is a word of every day use. The definition of word 'Ayurvedic medicines' given in section 3(a) of the Drugs and Cosmetics Act, 1940 cannot be made use of for the purpose of classifying a product under Central Excise Tariff. Drugs and Cosmetics Act, 1940 is a distinct and separate Act enacted by the Parliament and no provision of it has been incorporated or referred to in the Central Excises and Salt Act, 1944 or Central Excise Tariff which is also a separate enactment. 117. Regarding her second contention, no doubt it is true that Menthol, citric acid, camphor, iron, Alum, Borax, Potassium nitrate. Ammonium chloride are pharmacopeal items but their use in Ayurvedic preparations does not render such preparations non-ayurvedic provided the use of thes....
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....ablishing that it is entitled to avail the extended period of limitation of five years under Rule 9(2) of the Central Excise Rules, 1944. There is nothing on record to show and prove that the assessment was provisional at any time. No bond was ever executed to show and prove that the assessments were provisional. These goods were manufactured and cleared openly with the full knowledge and consent of the Excise Department inasmuch as the department granted a refund of Rs. 3,557.68 of the excise duty by giving benefit of Exemption Notification No. 62/78, dated 1st March, 1978 with effect from 1st March, 1978. How can the department now say that the assessee had violated the provisions of Rule 9(1) and therefore, liable under Rule 9(2) to pay duty for the extended period of five years? 122. The Hon'ble Supreme Court in the case of N.B. Sanjana v. Elphinston Spinning & Weaving Mills Limited (1978 E.L.T. J 339) held that it is only when goods have escaped payment of duty due to clandestine removal, that Rule 9(2) can be made applicable. In this case the department has not been able to show and prove that these goods have been removed clandestinely by the assessee. The mere fact ....
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....oods, not elsewhere specified......" the Excise Department took the view that Ayurvedic medicines even though they were specified under T.I. 14-E (albeit for the purpose only of exclusion) were classifiable under Tariff Item 68. 127. On 1st March, 1978 when the Government of India issued an Exemption Notification being Notification No. 62/78, whereby the total duty exemption hitherto provided under Tariff Item 68 on goods specified in the Schedule appended to Notification 55/75-C.E., dated 1-3-1975, was extended to "All drugs, medicines, pharmaceuticals and drug intermediates not elsewhere specified" and after the appellant stopped paying duty on 'Dant Manjan Lal' taking it as exempt from payment of duty by virtue of the notification and applied for refund of Rs. 3,557.68 which was the balance lying in the Appellants' Account current with the department in respect of Ayurvedic medicines manufactured and cleared by it on payment of duty under Tariff Item 68, the application for refund was considered by the department and the amount claimed was duly refunded by the Assistant Collector on 9-10-1978. 128. Baidyanath has filed classification lists from time to time and n....