TaxTMI 
TaxTMI 
2015 (10) TMI 1568
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....d the proceedings against them. Hence, the present appeals. Appeal No.E/509/04 OIA 9/04 dt. 29.01.2004 1. NeelibringadiThailam (with coconut oil base) 2. NeelibringadiThailam (with Gingelly oil bas) 3, SuganthamThailam hair oil Classification 30.03.39 by the respondents and 33.05.90 by the department. Appeal No.E/207/03 OIA 201/02 dt. 26.12.2002 1. NeelibringadiThailam (with coconut oil base) 2. NeelibringadiThailam (with Gingelly oil bas) 3. SuganthamThailam hair oil Classification 30.03.39 by the respondents and 33.05.90 by the department 4. DandaDhavanaChurnam Classification 30.03.39 by the respondents and 33.06.10 by the department. Appeal No. E/497/03 OIA 63/03 dt. 14.05.2003 1. Neelibringadi Thailam (with coconut oil base) 2. Neelibringadi Thailam (with Gingelly oil bas) 3. Sugantham Thailam hair oil Classification 30.03.39 by the respondents and 33.05.90 by the department 4. Danda Dhavana Churnam Classification 30.03.39 by the respondents and 33.06.10 by the department 2. Ld. AR for the Revenue reiterated the grounds of appeals and submitted that the main contentions of the revenue are as follows:- i) Thailams are of coconut or....
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....pose cannot be described as cosmetic simply because it has ultimately led to improvement in appearance of the person. The primary role of the product was to grow hair on his head and cure his baldness. 3. The Ld. Advocate on behalf of the respondents submits the following:- 1. The revenue having accepted that the goods under dispute are manufactured as per the ayurvedic pharmacopeia by use of the ingredients set out in the said pharmacopeia merely because it is applied on the hair for purity performances cannot propose the reclassification of the already accepted classification under Chapter 30. 2. The finding of the original authority that the market enquiries revealed that these products are generally available to customers and are brought and sold without any prescription of the doctor to conclude that the curative and prophylactic uses are subsidiary and not substantial is highly arbitrary and unreasonable being contrary to the various judgments of the Hon'ble Supreme Court of India. In fact the very preparation of these products admittedly being as per the ayurvedic pharmacopeia by itself would nullify the above arbitrary and revenue biased finding recorded by the or....
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....s from both sides and perused the records. The main issue involved in these cases is whether the impugned goods are classifiable under chapter 3305.99 according to the Revenue or classifiable under chapter 3303. 39 according to the respondents and whether Danda Dhavan Churam is classifiable under chapter 33.06.10 according to the Revenue or classifiable under chapter 3303.39 according to the respondents. 1. The appellant is a co-operative society had been registered only for the purpose of manufacture of ayurvedic and siddha medicaments and that the products have been registered with the Drug Control Authority for the purposes of promoting ayurvedic and siddha medicaments. 2. The manufacturing process is as outlined in the authoritative books of ayurveda, the formula is that as mentioned in Sahasrayogam with reference to the Neelibhringadi Thailam which is made with coconut oil base and Neelibhringadi Thailam which is manufactured with Gingelly oil base, the other products viz. Sugandham Thailam and Danda Dhavana Churnam are manufactured as per the classical formula prescribed in Vaidya Yoga Ratnavai, a Formulary of Ayurvedic Medicines. 3. It was further pleaded by the Ld. ....
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.... product is sold not under any medical prescription but the same is available across or under the counter and, hence, the same cannot be treated as medicament. This contention also has been rejected by this Court in Commissioner of Central Excise, Calcutta v. Sharma Chemical Works - 2003 (154) E.L.T. 328 (S.C.) To quote : "12. Mere fact that a product is sold across the counters and not under a Doctors prescription, does not by itself lead to the conclusion that it is not a medicament. We are also in agreement with the submission of Mr. Lakshmikumarn that merely because the percentage of medicament in a product is less, does also ipso facto mean that the product is not a medicament. Generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. The medicament would necessarily be covered by fillers/vehicles in order to make the product usable. It could not be denied that all the ingredients used in Banphool Oil are those which are set out in the Ayurveda text books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is....
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....order to be a medicinal preparation or a medicament it is not necessary that the item must be sold under a doctors prescription. Similarly availability of the products across the counter in shops is not relevant as it makes no difference either way". (Emphasis supplied) 19. Thus, the following guiding principles emerge from the above discussion. Firstly, when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive. What is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic. Secondly, though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics. There are several products that are sold over-the-counter and are yet, medicaments. Thirdly, prior to adjudicating upon whether a product is a medicament or not, Courts have to see what the people who actually use the product understand the product to be. If a products primary function is "care" and not "cure", it is not a medicament....