M/S. ICPA HEALTH PRODUCTS (P) LTD. versus COMMISSIONER OF CENTRAL EXCISE, VADODARA

Citation: [2004] SUPP. 1 S.C.R. 409 · Decided: 20-04-2004 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Appeal(s) allowed

Judgment (excerpt)

M/S. ICPA HEALTH PRODUCTS (P) LTD. 
v. 
COMMISSIONER OF CENTRAL EXCISE, V ADODARA 
APRIL 20, 2004 
[S.N. VARIA VA AND H.K. SEMA, JJ.] 
Central Excise Tariff Act, 1985; Tariff Item Nos. 38.08 and 3003.10; 
Note 2(1) to Chapter 30 and Note 1 (c) to Chapter 38; Notification No. 28188-
CE dated March 1, 1988: 
Classification-Principles of-Tariff Item 38.08 or 3003.10-Hexiprep, 
Hexiscrub (Surgiscrub) and Haxiaque-Revenue held the products classifiable 
under Tariff item No. 38.08-Upheld by Tribunal-On appeal, Held: Since 
A 
c 
the products have therapeutic properties and prophylactic uses, they are 
medicament as defined under Chapter 30-Products would be classifiable D 
under Tariff Item No. 3003. l 0. 
Words and Phrases: 
'Prophylactic '-Meaning of in the context of Central Excise Tariff Act, 
1985. 
:E, 
The question which arose for consideration in these appeals was as 
to whether the products Hexiprep, Hexiscrub (Surgiscrub) and Haxiaque 
would be classifiable under Tariff Item No. 38.08 as held by the Revenue 
and upheld by the Tribunal (CEGAT) or under Tariff Item No. 3003.10 
of the Central Excise Tariff Act as contended by the assessee. 
F 
Allowing the appeals, the Court 
HELD: The labels of the three products describe them as "superior 
surgical microbicidal solution". Hexiprep is used to paint the skin as 
required to disinfect the skin before surgery. It is for rapid skin disinfection G ' 
prior to surgery. Hexiaque is used as a skin disinfectant to paint the skin 
before surgery and as a wound disinfectant. It is described as a cleanser 
and is used for cleansing of wounds and abrasions and minor cuts. 
Hexiscrub is for use on hands and forearms of Surgeons for rapid hand 
409 
H 
410 
SUPREME COURT REPORTS (2004) SUPP. I S.C.R. 
A disinfection prior to surgery. The products therefore have prophylactic 
uses. If a product comprises of two or more constituents which have been 
mixed together for therapeutic or prophylactic uses, then it would be 
medicament. The Appellants' products were examined by the Chemical 
Examiner who has opined that these products have therapeutic properties. 
B 'Hence the products cannot be classified under Tariff Item No. 38.08 but 
will be classifiable under Tariff Item No. 3003.10. [411-B; 412-CJ 
Oxford Dictionary, 9th Edition, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4766-4768 
C of 1998. 
D 
From the Judgment and Order dated 1.5.98 of the Central Excise, 
Customs and Gold (Control) Appellate Tribunal, New Delhi in F.O. Nos. 
320-22/98-C in A. Nos. E-770 of 1992-C and E/38-39 of 1995-C 
Alok Yadav for V. Balachandran for the Appellant. 
Soli J. Sorabji, Attorney General for India, Ms. Vibha Makhija, B. 
Krishna Prasad for the Respondent. 
The Judgment of the Court was delivered by 
E 
S.N. V ARIA VA, J. These Appeals are against the Judgment of the 
Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT) 
dated lst May, 1998. 
Briefly stated the facts are as follows: 
F 
The Appellants manufacture, amongst other things, Hexiprep, Hexiscrub 
(Surgiscrub) and Haxiaque. They classified these items under Tariff Item 
3003.10 and paid duty under Notification No. 29/88-CE dated lst March, 
1988. Eight show-cause-notices were issued to them calling upon them to 
show cause as to why the product; should not be classified under Tariff Item 
G 38.08. The Adjudicating Authority then upheld the classification as proposed 
in the show-cause-notices. The Appeal filed by .the Appellants to CEGAT has 
been dismissed by the· impugned Judgment. 
The three products of the Appellants were examined by the Chemical 
Examiner who opined that they contained chlorhexdine gluconate solution 
H BP, which had therapeutic properties. The Chemical Examiner also opined 
ICPAHEALTHPRODUCTS(P)LTD.v. C.C.E.[VARIAVA, J.] 
411 
that they were used as disinfectants and were thus covered by Tariff Entry A 
38.08. 
The labels of the three products describe them as "superior surgical 
microbicidal solution". It is admitted that Hexiprep is used to paint the skin 
as required to disinfect the skin before surgery. It is for rapid skin disinfection 
prior to surgery. Hexiaque is used as a skin disinfectant to paint the skin B 
before surgery and as a wound disinfectant. It is described as a cleanser and 
is used for cleansing of wounds and abrasions and minor cuts. Hexiscrub is 
for use on hands and forearms of Surgeons for rapid hand disinfection prior 
to surgery. 
At this stage

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