COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV versus M/S. CIENS LABORATORIES, MUMBAI

Citation: [2013] 14 S.C.R. 38 · Decided: 14-08-2013 · Supreme Court of India · Bench: S. J. MUKHOPADHAYA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
[2013] 14 S.C.R. 38 
COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV 
v. 
M/S. CIENS LABORATORIES, MUMBAI 
(Civil Appeal No.6988 of 2003 etc.) 
AUGUST 14, 2013 
[SUDHANSU JYOTI MUKHOPADHAYA AND 
KURIAN JOSEPH, JJ.] 
Central Excise Tariff Act, 1985 - Tariff Headings 30. 03 
and 33.04(8) - Classification - Product, whether medicament 
or cosmetic product - Held: If the primary function of a 
product is 'care' it is a 'cosmetic product' and if primary 
function is 'cure' it is a 'medicament' - If a product comprises 
of two or more constituents, compounded together for 
D 
therapeutic or prophylactic use, it is to be termed as 
'medicament' covered by Heading 30. 03 of the Act -
The 
product in question is used not for the care of the skin, but 
for treating or curing the skin conditions - The presence of 
pharmaceutical substances in the product in question, makes 
E it medicament covered under Heading 30.03 of the Act - It 
is the presence and not the proportion of the pharmaceutical 
substances that is relevant. 
The question for consideration, in the present 
F 
appeals was whether the product in question 'Moisturex' 
c:ream is a 'medicament' under Heading 30.03 of Central 
Excise Tariff Act, 1985 attracting 15% duty (as claimed by 
the respondent-assessee) or is a 'cosmetic product' 
F 
H 
attracting 70% duty under heading 33.04 of the Act. 
Dismissing the appeals, the Court 
_ 
HELD: 1. The Customs, Excise and Gold (Control) 
Appellate Tribunals, having regard to the pharmaceutical 
38 
COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV v. 
39 
CIENS LABORATORIES, MUMBAI 
constituents present in the product in question (cream 
A 
'Moisturex') and its use for the cure of certain skin 
diseases, have rightly held that the same is a 
medicament liable to be classified under the Heading 
30.03 (medicament) of Central Excise Tariff Act, 1985. 
[Para 21] [57-B-C] 
B 
2. 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 c 
curative attributes of such ingredients that render the 
product a medicament and not a cosmetic. 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 I across the counter 
D 
are cosmetics. There are several products that are sold 
over-the-counter and are yet, medicaments. Prior to 
adjudicating upon whether ti 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 product's 
E 
primary function is "care" and not "cure", it is not a 
medicament. Cosmetic products are used in enhancing 
or improving a person's appearance or beauty, whereas 
medicinal products are used to treat or cure some 
medical condition. A product that is used mainly in curing 
F 
or treating ailments or diseases and contains curative 
ingredients even in small quantities, is to be branded as 
a medicament. [Para 19] [56-B-E] 
3. In the case of 'Moisturex', there is no dispute that G 
the said cream is prescribed by the dermatologist for 
treating the dry skin conditions and that the same is also 
available in chemist or pharmaceutical shops in the 
market. The cream is not primarily intended for protection 
H 
40 
SUPREME COURT REPORTS 
[2013] 14 S.C.R. 
A of skin. The ingredients in the cream, the pharmaceutical 
substances do show that it is used for prophylactic and 
therapeutic purposes. The Central Excise Tariff Act has 
unambiguously clarified as to what is a medicament for 
curing an ailment relating to skin. Heading 33.04 dealing 
B with beauty or make-up preparations and preparations 
for the care of the skin has specifically excluded 
medicaments. There is also an indication under the same 
entry that medicinal preparations used to treat certain 
complaints are to be provided under the Heading 30.03 
C (medicaments) 
or 
30.04 
(products 
containing 
pharmaceutical substances used for medical, surgical, 
dental or veterinary purpose). [Para 20] (56-F-H; 57-A] 
4. It is not correct to say that 'Moisturex' is a 
D moisturizing cream used for softening the skin. The use 
of the cream is not for the care of the skin. 'Moisturex' is 
also not primarily intended to protect the skin from sun, 
tan or dryness, etc. On the other hand, it is intended for 
treating or curing the dry skin conditions 

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