LexCOMMISSIONER OF CENTRAL EXCISE, HYDERABAD versus M/S. SARVOTHAM CARE LIMITED
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
.[2015] 10S.C.R.1
COMMISSIONER OF CENTRAL EXCISE, HYDERABAD
A
v.
M/S. SARVOTHAM CARE LIMITED
(Civil Appeal No.4480 OF 2005)
MAY 14, 2015
[A. K. SIKRI AND R. F. NARIMAN, JJ.]
B
Central Excise Tariff Act, 1985 - CHS 3003.10 and
CHS 3305. 99- Ketoconazole Shampoo and Nizral Shampoo c
- Classification of, under CHS 3003. 10 as 'pharmaceuticals
product' or under CHS 3305.99 as 'preparation for use on
hair' - Held: The_ essential properties of Ketoconazole
Shampoo and Nizral Shampoo are medicinal in nature -
Thus, the product is classifiable under CSH 3"003. 10 as D
pharmaceutical Product.
Disposing of the appeals, the Court
HELD: 1.1 The view taken by the tribunal that the
product 'Nizral Shampoo' is classifiable under CSH E
3003.10 as pharmaceuticals Product and not CSH
3305.99 as preparation for use on hair, is concurred with.
[Para 13] [13-D]
1.2 The product known as 'Nizral Shampoo' gives F
the nomenclature of the product as shampoo. To
determine as to whether the product in question is
primarily used as a shampoo or it is used as a
medicament, it is necessary to keep in mi mt the essential G
characteristics of the product. On examination from the
said perspective, it is concluded that the respondent is
correct in submitting that the essential properties of the
product are medicinal in nature. The manufacturer has
given clear warning and precautions for the use of this H
1
2
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A product. It is mentioned as to how the treatment should
be given to a person suffering from various kinds of
dandruffs. Even the adverse.reactions of the treatment
are mentioned by the manufacturers with specific advice
that overdose of this shampoo is not expected. Thus,
B not only limited period use is stated, another important
feature that appears in the literature supplied by the
respondent is the information for the 'patient', describing
the user of the product as a 'patient'. [Para 14, 15] [13-E-
F, G; 14-A, G; 15-8-C, E-F; 16-C]
c
1.3 The use is suggested only on the advice of a
Doctor and there is a suggestion that a Doctor should
be consulted for any further information: The respondent
has also provided the literature/material showing that
D dandruff is a disorder which affects the hairy scalp. It is
generally triggered by a single celled organism which is
a kind of fungus, with scientific name 'Pityrosporum
Ova le'. For treatment of this disease, Nizral Shampoo 2%
(i.e. shampoo containing 2% ('Ketoconazole') is shown
E as 'a new medicine' use whereof cures dandruff. It is
suggested that it should be used once a week and on
other days, normal shampoos may be used which clearly
shows that 'Nizral Shampoo' is to be used like a medicine,
F unlike other normal Shampoos. Further, in order to show
that the product was used only as a medicament for
curing dandruff and not for using the same for the
purpose of cleaning hair, the assessee filed affidavits of
various Doctors. [Para 16,17] [16-F-H; 17-A-B]
G ·
1.4 The. tribunal held that there is enormous
evidence produced by the appellants with regard to the
use of Ketoconazole Shampoo for treatment of several
disorders and diseases mentioned in the pamphlet and
H the same is sold by a chemist under a prescription issued
by a Registered medical Practitioner or a Hospital or a
COMMISSIONER OF CENTRAL EXCISE, HYDERABAD v.
3
M/S. SARVOTHAM CARE LTD.
Laboratory. Thus, the judgment of the tribunal does not A
call for any interference. As regards the other appeal, for
the reasons recorded in C.A. No. 4480 of 2005, the order
of the High Court as well as respondent No.2 demanding
differential duty is quashed. [Paras 19, 20, 22] [25-C-D,
E; 26-A-B]
B.PL. Pharmaceuticals Ltd. v. CCE, Vadodra
1995 (3) SCR 1235: 1995 Supp. (3) sec 1 -
relied on.
Collector of Central Excise, Shillong v. Wood
Crafts Products Ltd. 1995 (2) SCR 797: (1995) 3
SCC 454; CCE, Hyderabad v. Bakelite Hy/am
1997 (91) ELT 13; Amit Ayurvedic & Cosmetic
Products v. Commissioner2004 (168) ELT 354;
CCE Vapi v. Beta Cosmetics 2004 (173) ELT 255
- referred to.
Case Law Reference
1995 (2) SCR 797
Referred to.
Para 7
1997 (91) ELT 13
Referred to.
Para 8
2004 (168) ELT 354
Referred to.
Para 9
2004 (173) ELT 255
Referred to.
Para 9
1995 (3) SCR 1235
Relied on.
Para 18
CIVILAPPELLATE JURISDICTION: Civil Appeal No.
4480 of2005
B
c
D
E
F
From the Judgment and Order dated 18.01.2005 of the G
Customs, EExcerpt shown. Read the full judgment & AI analysis in Lexace.