LexCOMMISSIONER OF CENTRAL EXCISE, CALCUTTA versus M/S. SHARMA CHEMICAL WORKS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
COMMISSIONER OF CENTRAL EXCISE, CALCUTTA A v. MIS. SHARMA CHEMICAL WORKS APRIL 30, 2003 [S.N. VARIAVA AND BRIJESH KUMAR, JJ.] Cemral Excise Tariff Act, 1985; Tariff Item Nos. 3305.10 and 3303.30 and Circular daled 5. I 2. I 991: B Classification-Principles-Producl "Banphool Oil'-'Medicament' or C 'Perfi1med I-lair Oil'-Tribunal held the product as Ayurvedic Medicament- On appeal, f-leld: Neither the proportion of medicament present in the product nor the mode of selling of the product nor selling by prescription necessarily de/ermines its classification-Product could be classified as medicament when it contains all the ingredients prescribed in the Medicine Text Books or the D proprietai:v formula patented or by the use of !he product -Burden to prove is on Revenue-However, Revenue failed to prove !hat the product is popularly known by its user as 'hair oil':__lt could be used for treatment of certain ailments-Manufac/l/ring is done under a drug licence-Revenue referring the ma//er to the Drug Controller and he had opined the product as 'Ayurvedic Medicament '-Revenue could have referred the matter further to other E authorities/or opinion but had not done so-f-lence Tribunal rightly classified the product as 'Ayurvedic Medicament' falling under Tariff Item 3003.30. Words and Phrases: 'cosmetic', 'medicament', 'drug' and 'toilet preparation'-Meaning of F In the order impugned, the Customs Excise and Gold (Control) Appellate Tribunal, per majority, held the product'Banphool Oil' classifiable as an Ayurvedic medicament under Tariff Item 3003.30 of the Central Excise Tariff Act. Hence the present appeal and connected appeals. The question which arose for consideration in these appeals against the order of the CEGAT was whether the product 'Banphool Oil' was classifiable as an 'Ayurvedic Medicament' or a 'perfumed hair oil'. It was contended for the Revenue that the assessee himself had 1027 G H 1028 SUPREME COURT REPORTS [2003) 3 S.C.R .. A initially classified the product 'Banphool Oil' as a toilet preparation but later sought to revise it as 'Medicament'; that the product contained very less percentage (2%) of Ayurvedic ingredient; that cartons/labels indicated the product as hair oil; that the product was being sold across the counter by the grocers as well; and that no evidence was adduced to prove that it B was commonly used as medicine; and that the product could appropriately be classified as 'hair oil' under tariff item 3305. IO. On behalf of the assessee, it was submitted that the medicament under Chapter 30 of the Central Excise Tariff Act could either be patented/ proprietary medicament or non-patented/non-proprietary medicament; C that the medicament could be as per formula prescribed in Pharmacopoeias or some patented formula; that medieament should necessarily contain only small quantity of medicines/ingredients else it could be harmful; that in case of any doubts/disputes regardi'ng classification of the product as medicament, the matter should be referred to the authorities mentioned in the Board's Circular dated 5th December, 1991; and that merely because D a product was available across the counter would not conclude that the product was not a medicament. E Dismissing the appeals, the Court HELD: I.I. It is settled law that the onus or burden to show that a product fall within a particular Tariff item is always on the Revenue. Mere fact that a product is sold across the counters and not under a Doctor's prescription, does not by itself lead to the conclusion that it is not a medicament. That merely because the percentage of medicament in a product is less does not ipso facto mean that the product is not a F medicament. Generally the percentage or dos'llge of the medicament will be such as can be absorbed by the human body. The medicament would necessarily be covered by tillers/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 G formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. 11039-E-GI H B.B.l. Pharmaceuticals ltd v. Collector of Central Excise, Vadodara. 11995[ Supp. 3 SCC I and Amrutanjan ltd. v. Collector of Central Excise, 11996[ 9 sec 413, relied on. C.C.E. v. SHARMA CHEMICAL WORKS 1029 Collector of Central Excise v. Pharmasi
Excerpt shown. Read the full judgment & AI analysis in Lexace.