TaxTMI 
TaxTMI 
2006 (3) TMI 141
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.... while as medicament the products attract nil duty. The following products manufactured by the appellant are under consideration : 1. (xvii) Puma Neem Facial Pack (Neemal) 2. (xviii) Puma Anti-Pimple Herbal Powder (Pimplex) 3. (xix) Puma Herbal Facial Pack (Herbaucare) 4. (xx) Puma Herbal remedy for Facial Blemishes 5. (xxi) Puma Herbal Massage Oil 6. (xxii) Puma Herbal Massage Oil for Women 7. (xxiii) Puma Hair Tonic Powder (Sukeshi) 8. (xxiv) Puma Scalp Tonic Powder (Scalpton) 9. (xxv) Puma Anti-Dandruff Oil (Dandika) 10. (xxvi) Puma Shishu Rakshan Tel 11. (xxvii) Puma Neem Tulsi. 2.The appellant has a licence to manufacture these and other products from the Drug Controller under the Drugs and Cosmetics Act. According to the learned counsel for the appellant all the above items are produced from ingredients found in Ayurveda text books. They are manufactured as per the Ayurveda pharmacopoeia and have curative, therapeutic or prophylactic value. They are basically meant to give relief in body ailments. They are not items of cosmetics. In order to determine whether a product is a cosmetic or a medicament a twin test has found favour with the Cour....
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....duct which is subject-manner of the present appeal to show that the ingredients of each product are independently mentioned in the Ayurvedic texts. The ingredients are natural Ayurvedic product like shrubs, herbs, leaves, fruits, nuts, flowers, wood and bark of particular trees. In support of his contention the learned counsel for the appellant placed before the departmental authorities lot of material in the shape of certificates and letters from doctors. Ayurvedic practitioners, experts and above all from the users of the products in question. 6.The Collector (Appeals) who decided the issue in favour of the appellant among other things, relied on the opinion obtained by the Assistant Collector as per Board's Circular from the Directorate of Ayurveda Maharashtra, Bombay vide their letter No. AYURVEDIC-2 Misc. PUMA 1989 10563 dated 1-12-89 which is quoted as under : "With reference to your letter dated 12-9-89 on the subject opted above, the samples of products of Ms. Puma Ayurvedic Herbals (P) Ltd., Nagpur (i.e. 11 items) were referred to Dravyaguna Department of one of our institution for carrying out tests. These items were tested by Organoloptic Method. Now the Profess....
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....f classification has no relevance. We agree with the Collector (Appeals) that the opinion of the Chief Chemist has no relevance for determining classification of the products. The role of the Chief Chemist is only to supply the analytical data. On the other hand the opinion of the Directorate of Ayurved, Maharashtra referred to above is of great relevance. The said Directorate has clearly and unambiguously stated that the products in question are meant for treatment of certain skin diseases and the type of ingredients used in the products are described in Ayurvedic texts, being useful in such treatments. 10.The learned counsel for the appellant drew our attention to certain decisions of this Court wherein Ayurvedic products have been held to be falling in Chapter 30 of the Central Excise Tariff Act, 1985 and not under Chapter 33. In C.C.E. v. Sharma Chemical Works - 2003 (154) E.L.T. 328 it was held that the onus to prove that a particular product falls under a particular head of the Central Excise Tariff is on the Revenue. It was for the Revenue to show and establish that the product in question was not a medicament or that the common man did not understand the product as a med....
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....ction of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Act. As held in Amruthanjan case, the mere fact that the ingredients are purified or added with some preservatives does not really alter their character." 14.In Amrutanjan v. C.C.E. - 1995 (77) E.L.T. 500 (S.C.) this Court held that Amritanjan Pain Balm having Menthol IP, Camphor IP, Turpentine IP and Methyl IP, Salicylate IP as main ingredients, was classifiable as Ayurvedic medicine under Chapter 30 of the Tariff. It was noticed that the ingredients were known both to Ayurvedic and western sciences. Still the classification as medicament was upheld. 15.BPL Pharmaceuticals v. C.C.E. - (1995) Suppl. 3 SCC 1 was a case in which "Selsun Shampoo" was under consideration for purposes of classification under the Tariff Act. According to the manufacturers this shampoo was a medicated shampoo meant to treat dandruff which is a disease of the hair. This Court held that having regard to the preparation, label, literature, character, common and commercial parlance, the product was liable to be classified as a medic....
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....g, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic." 20.It will be seen from the above definition of cosmetic that the cosmetic products are meant to improve appearance of a person, that is, they enhance beauty. Whereas a medicinal product or a medicament is meant to treat some medical condition. It may happen that while treating a particular medical problem, after the problem is cured, the appearance of the person concerned may improve. What is to be seen is the primary use of the product. To illustrate, a particular Ayurvedic product may be used for treating baldness. Baldness is a medical problem. By use of the product if a person is able to grow hair on his head, his ailment of baldness is cured and the person's appearance may improve. The product used for the purpose 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. 21.The extent or the quantity of medicament used in a particular product will also not be a relevant factor. Normally, the ext....
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....y beauty or make up preparations. They may incidentally help in protection against skin irritants. They may also help as a skin tonic, yet they are cosmetics because skill protection is subsidiary benefit. 25.In this connection reference may also be made to Note 1(d) to Chapter 30 of the Central Excise Tariff. The said Note reads as under : Note 1 starts with "This Chapter does not cover". (a) ..................... (b) ..................... (c) ..................... (d) "Preparations of Chapter 33 even if they have therapeutic or prophylactic properties." 26.Thus preparations falling in Chapter 33 even if they have therapeutic or prophylactic properties will not fall under Chapter 30 which deals with pharmaceutical products. The reasons for this appears to be that even cosmetics may have something to improve skin or other parts of the body where they are used. In that sense they may have some therapeutic value yet they remain cosmetic. 27.From the above discussion it is clear to us that the Revenue has failed to make out any case in support of it....