M/S. SUNNY INDUSTRIES PVT. LTD. versus COLLECTOR OF CENTRAL EXCISE, CALCUTTA

Citation: [2003] 3 S.C.R. 18 · Decided: 25-03-2003 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Dismissed

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

Judgment (excerpt)

A 
M/S. SUNNY INDUSTRIES PVT. LTD. 
T 
v. 
COLLECTOR OF CENTRAL EXCISE, CALCUTT A 
MARCH 25. 2003 
B 
[M.B. SHAH AND ARUN KUMAR, JJ.) 
Central Excise Tariff Act, 1985--Tarijf Heading 33.04 and 30.03-Ad 
vitamin Massage Oil forte-Classification of-For levy of excise duty-Held, 
c product is classifiable as cosmetics and toilet preparation falling under tariff 
Item 33.04 and not as medicaments under Heading 30.03 since it is oil 
containing some A and D vitamins which is used for massage, intending lo 
take care of skin and no/ for cure of the skin. 
Appellant-Company manufactured Ad-vitamin Massage Oil forte on 
D the basis of sanction accorded by the Drug Control Authorities. It was 
classified under Tariff Item No.14-E (Medicaments) of the First Schedule 
to the Central Excise and Salt Act, 1944 for the levy of excise duty. 
Assistant Collector classified it undler Tariff Item No.14-F excisable as 
cosmetics goods. Collector (Appeals) upheld the order. Aggrieved appellant 
E 
filed appeal before the Tribunal which was dismissed. Hence the appeal. 
Meanwhile, Central Excise Tariff was reconstituted and Tariff Item 14E 
was made equivalent to Tariff Item 30.03 and Tariff Item 14-F to Tariff 
Item No.33.04 of the Central Excise Tariff Act, 1985. Appellant then 
claimed classification of its product under heading 3003.19 as patent and 
proprietary medicine. However, Assistant Collector approved classification 
F under heading 3304.00. Appellant filed appeals. Both Collector (Appeals) 
and the Tribunal dismissed the samie. Hence the other civil appeal. 
, 
Appellant contended that the p1roduct Ad-vitamin massage Oil Forte 
was considered as medicine and it would he covered under heading 3003.19 
as patent and proprietary medicine; and that the product is primarily a 
G drug. 
Dismissing the appeal, the Court 
HELD: From the Chapter notes 2 and 5 of Chapter 33 of the Central 
Excise Tariff Act, 1985, it is clear that heading 33.03 would include 
H 
18 
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SUNNY INDUSTRIES PVT.LTD. v. C.C.E. [M.B. SHAH, J.] 
19 
products whether or not they contain subsidiary pharmaceutical or A. 
antiseptic constituents, or are held out as having subsidiary curative or 
prophylactic value and heading 33.04 would inter alia include the products 
specified therein and .other preparations for use in manicure or chiropody 
and barrier creams to give protection against skin irritants. Therefore, 
the product-Ad-vitamin massage Oil Forte, mainly oil containing some B 
A&D vitamins which is used for massage, even if it prevents aliment or 
rickets and treats the same, it cannot be held to be medicaments. Further, 
after verification of the entire evidence and the certificate produced on 
record as well as the report of the Chemical Analyser, the Tribunal rightly 
arrived at the conclusion that the product in question is oil used for 
massage and would be covered by heading 33.04. [23-E-G] 
C 
Mis. Alpine Industries v. Collector of Central Excise, New Delhi, JT 
(2003] I SC 130, relied on. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4589of1995. 
From the Judgment and Order dated 30.11.1994 of the Central Excise· 
Customs and Gold (Control) Appellate Tribunal New Delhi in A. No. E./ 
2025/88-C in F.O. No. 363 of 1994-C. 
WITH 
CJ,. No. 138 of 1989. 
Raj Kumar Gupta, Sheokumar Gupta and A.N. Bardiyar, for the 
Appellant. 
D 
E 
Anoop G. Choudhary, Ashok K. Srivastava and B. Krishna Prasad, for p 
the Respondent. 
The Judgment of the Court was delivered by 
SHAH, J. It is the contention of the appellant Company that 1t 1s 
engaged in manufacture inter alia of Ad-vitamin Massage Oil forte (Patent G 
or Proprietary Medicines) since 1949 on the basis of sanction accorded by 
the Drug Control Authorities. This preparation was brought and classified for 
levy of duty of Excise with effect from 1.3.1961 falling under Tariff Item 
No.14-E of the First Schedule to the Central Excise and Salt Act, 1944 
(hereinafter referred to as "the Act").By order dated 26.12.1985, the Assistant 
Collector classified the said product under Tariff Item No.14-F (Heading H 
20 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A 3304.00) excisable as cosmetics goods. Collector (Appeals) also affirmed the 
order of the Assistant Collector by order dated 29.4.1986. Against that order, 
appellant preferred appeal No.E-2226/86-C before the Customs, Excise and 
Gold (Control) Appellate Tribunal ("Tribunal" for short) which was also 
dismissed by order dated 26.10.1988. Aggrieved t

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