TaxTMI 
TaxTMI 
2004 (1) TMI 119
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....(i) Canifur Liquid : Combined extract of Melia Azadirachta (S : Nimba) and Lawsonia Inermis (S : Medika), Base Q.S. (ii) Canifur AZ Liquid : Combined extract of Melia Azadirachta (S : Nimba), Lawsonia (S. Medika) and Cocos nucifera (S : Gadapushpa), Base Q.S." 2.2He mentioned that the impugned products contain ingredients which are mentioned in the Ayurvedic Textbooks and are used to cure pets and animals from lice, ticks, mites and dandruff; that these products are bought and sold only from drug shops and on prescription of doctors; that the Revenue has classified these products under sub-heading 3305.90 on the ground that the therapeutic/prophylactic properties of the products is not the primary use and is only secondary and that these products have not been manufactured in accordance with the formulae prescribed in Ayurvedic Texts and the products as such do not find mention in the Ayurvedic Textbooks. 2.3The learned Counsel submitted that for a products to be classified under Heading 30.03 as Ayurvedic medicament, the requirement is only that the ingredients of the product should ....
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.... beyond six months from the relevant date; that they were under the bona fide belief that their products were Ayurvedic medicaments not chargeable to Central Excise duty; that their bona fide conduct is also evident from the fact that in March, 1994, when the patented Ayurvedic medicines attracted duty of excise, they filed classification under Heading 30.03; that there is nothing on record to suggest that the Appellants had any mala fide intention to evade payment of duty; that for the same reason no penalty is imposable on any of the Appellants. 5.1 Countering the arguments, Sh. Jagdish Singh, learned DR, submitted that the impugned products are not medicaments but veterinary shampoo having some subsidiary curative or prophylactic value; that the primary use of the product is as a shampoo for dogs, cats and other animals; that the Commissioner has given his specific finding in Order-in-Original, dated 30-12-97 that the label of product 'Canifur' indicated as under : "Bathe the dog to ensure complete wetting. Apply 10 to 20 grams of Canifur and rub thoroughly into the depth of the hair coat for 5 to 10 minutes and wash with the water. Repeat using Canifur again and rinse tho....
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....re are ample materials made available by the appellant in support of his contention that the ingredients which had gone into the manufacture of 'Himtaj Oil' are only those which are specifically mentioned in the authoritative textbooks on Ayurveda"; that in 'Himtaj' case there were sufficient materials to support the contention that the said product is known as Ayurvedic medicament in common parlance which is missing in the present matters. 6.The learned DR referred to Note 1(d) to Chapter 30 of the Tariff which excludes "Preparations of Chapter 33 even if they have therapeutic or prophylactic properties" from the purview of Chapter 30 and stated that Note 2 to Chapter 33 is also to the same effect as it provides that Heading Nos. 33.03 to 33.07 "includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value"; that the products in question are veterinary shampoo having some subsidiary curative or prophylactic value and as such is classifiable under Heading 33.05 of the Tariff. 7.In reply the learned Advocate submitted that in a medicine, some other ingredients such as exci....
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....thoritative books though it was manufactured in accordance with the formulation of the manufacturer and sold in his brand name. The appeal filed by the Commissioner has been dismissed by the Supreme Court as reported in 2003 (154) E.L.T. 323 (S.C.). Moreover, the Supreme Court has also held in C.C.E., Calcutta v. Sharma Chemical Works - 2003 (154) E.L.T. 328 (S.C.) that the formula may not be as per the Textbooks and a medicament can also be under a patented or proprietory formula. Thus a product does not cease to be an ayurvedic medicament, which contains ingredients mentioned in the authoritative Textbooks on Ayurveda, merely because it has not been processed or manufactured according to formulae prescribed in the authoritative Ayurvedic Textbooks. 9.1 The second contention raised by the Revenue is that the impugned products are 'Veterinary Shampoos' having some subsidiary curative or prophylactic value and in terms of Note 1(d) to Chapter 30 and Note 2 to Chapter 33, they would be classifiable under Heading 33.05 being preparations for use on the hair. On the other hand, the learned Advocate for the Appellants has contended that the impugned products are used to cure pets and....