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CASE NO.: Appeal (civil)  6319-6321 of 2003

PETITIONER: M/s. Puma Ayurvedic Herbal (P) Ltd

RESPONDENT: Commissioner, Central Excise, Nagpur

DATE OF JUDGMENT: 08/03/2006

BENCH: Ashok Bhan & Arun Kumar

JUDGMENT: JUDGMENT WITH   CIVIL APPEAL NOS.1414-1416/2004

Arun Kumar, J.         The appellant claims to be a manufacturer of Ayurvedic products  which are intended to cure certain ailments of the human body.  A question  has arisen as to whether the products manufactured by the appellant fall  within the category of medicaments or cosmetics.  Answer to this question  determines as to whether the goods are classifiable under the Central Excise  Tariff Act, 1985 as cosmetics under Chapter 33 or as medicaments under  Chapter 30.  As cosmetics the rate of excise duty is quite high while as  medicament the products attract nil duty.  The following products  manufactured by the appellant are under consideration: 1.           (xvii)Puma Neem Facial Pack (Neemal) 2.      (xviii)Puma Anti-Pimple Herbal Powder (Pimplex) 3.      (xix)   Puma Herbal Facial Pack (Herbaucare) 4.      (xx)    Puma Herbal remedy for Facial Blemishes 5.      (xxi)   Puma Herbal Massage Oil 6.      (xxii)  Puma Herbal Massage Oil for Women 7.      (xxiii) Puma Hair Tonic Powder (Sukeshi) 8.      (xxiv) Puma Scalp Tonic Powder (Scalpton) 9.      (xxv)  Puma Anti-Dandruff Oil (Dandika) 10.     (xxvi) Puma Shishu Rakshan Tel 11.     (xxvii)Puma Neem Tulsi

       The appellant has a licence to manufacture these and other products  from the Drug Controller under the Drugs and Cosmetics Act.  According to  the learned counsel for the appellant all the above items are produced from  ingredients found in Ayurveda text books.  They are manufactured as per the  Ayurveda pharmacopaeia and have curative, therapeutic or prophylactic  value.  They are basically meant to give relief in body ailments.  They are  not items of cosmetics.  In order to determine whether a product is a  cosmetic or a medicament a twin test has found favour with the Courts.  The  test has approval of this Court also vide Collector Vs. Richardson  Hindustan Ltd.[1989(42) ELT A100 (SC)/2004 (9) SCC 156.  There is no  dispute about this as even the Revenue accepts that the test is determinative  for the issue involved.  The tests are: I.      Whether the item is commonly understood as a medicament which is  called the common parlance test.  For this test it will have to be seen whether   in common parlance the item is accepted as a medicament.  If a product falls  in the category of medicament it will not be an item of common use.  A user  will use it only for treating a particular ailment and will stop its use after the  ailment is cured.  The approach of the consumer towards the product is very  material?  One may buy any of the ordinary soaps available in the market.   But if one has a skin problem, he may have to buy a medicated soap.  Such a  soap will not be an ordinary cosmetic.  It will be medicament falling in  Chapter 30 of the Tariff Act.

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II      Are the ingredients used in the product mentioned in the authoritative  text books on Ayurveda?

       The two tests are recognized even by the Central Board of Excise and  Customs and the Board had vide its letters dated 3rd October 1991 and 5th  December, 1991 directed the Assistant Collector to decide the classification  of the products in question by applying the aforesaid two tests.         The learned counsel for the appellant has argued that the products of  the appellant satisfy both the above tests and, therefore, the CEGAT was  wrong in classifying them under Chapter 33 as cosmetics.  According to the  learned counsel the products in question have a special use.   They are not  items of common use. Only those who want to treat a  particular ailment will  go for the particular product of  the appellant.  The use of a product by the  customers i.e. how the consumers take to a product is a very useful method  of determining the classification of products. What is to be seen is whether  the products are  likely to be in common use by normal consumers.   Common parlance meaning and understanding is a strong factor in the  determination of classification of products.  One need not resort to scientific  or technical meaning of the terms used.   So far as the other test is concerned, the learned counsel for the  appellant has placed on record material from the Ayurvedic texts or  Pharmacopoeia in support of each product which is subject matter of the  present appeal to show that the ingredients of each product are  independently mentioned in the Ayurvedic texts.  The ingredients are natural  Ayurvedic product like shrubs, herbs, leaves, fruits, nuts, flowers, wood and  bark of particular trees.  In support of his contention the learned counsel for  the appellant placed before the departmental authorities lot of material in the  shape of certificates and letters from doctors, Ayurvedic practitioners,  experts and above all from the users of the products in question.          The Collector (Appeals) who decided the issue in favour of the  appellant among other things, relied on the opinion obtained by the Assistant  Collector as per Board’s Circular from the Directorate of Ayurveda  Maharashtra, Bombay  vide their letter No.AYURVEDIC- 2/Misc/PUMA/1989/10563 dated 1.12.89 which is quoted as under: "With reference to your letter dated 12.9.89 on the subject  opted above, the samples of products of M/s. Puma Ayurvedic  Herbals (P) Ltd., Nagpur (i.e.11 items) were referred to  Dravyaguna Department of one of our institution for carrying  out tosts. These items were tested by Organoloptic Method.

2/-  Now the Professor and Incharge of Dravyaguna Department  has opined that the raw materials used for preparation of the  above items are described in Ayurvedic texts.  As such, all  ingredients are Ayurvedic raw material.  Treatment of certain  skin diseases is done by Lep, Pralep and Pradheh.  This type of  treatment is described in Ayurvedic Texts.

3/-  In view of the above, the samples of 11 items sent by you  vide your letter under reference can be classified as  "Proprietary Ayurvedic Medicines".

This opinion coming from a competent and authorised source, is of  great relevance so far as the case in hand is concerned.  Besides this the  evidence produced by the appellant before the authorities in the shape of  letters from consumers, from doctors and from Ayurvedic physicians  satisfies the common parlance test. On the other hand the revenue led no evidence of any sort to rebut the  evidence led by the assessee.  It is settled law that burden of showing correct  classification lies on the revenue.  The revenue has done precious little in  this case to discharge this burden.  The Collector (Appeals) further relied on  the following evidence in support of his finding that the products in question  fall in the category of medicaments: (i)     licence No.A/40/888 granted by the Drug Controllers,  Maharashtra.   (ii)    The inscription of the words on the wrapper "Ayurvedic

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Proprietory medicines or and Ayurvedic licence No.A/888 on  the wrapper mentioning of percentage of ingredients as  approved by the Drug Controller. (iii)   Circulation of Therapeutic Index of the products for the use of  Doctors/Vaidyas. (iv)    Certificate issued by Dr. Narendra Agashe, M.D. Medical  Superintendent, Dr. Dalvi Memorial Hospital, Nagpur, the  relevant extract of which is reproduced below: "This is to certify that we in this hospital have  extensively tried the following Ayurvedic Medicinal  Products from Puma Ayurvedic & Herbal Cosmetics Co.,  Nagpur.  We have found them to be of good therapeautic  value and prescribe them regularly whenever the need  arises."

       We may note here that the Chief Chemist had opined about the  classification of these products under the Chapter 233 i.e. "Cosmetic" but  the opinion of the Chief Chemist on the question of classification has no  relevance.   We agree with the Collector (Appeals) that the opinion of the  Chief Chemist has no relevance for determining classification of the  products.  The role of the Chief Chemist is only to supply the analytical data.    On the other hand the opinion of the Directorate of Ayurved, Maharashtra  referred to above is of great relevance.  The said Directorate has clearly and  unambiguously stated that the products in question are meant for treatment  of certain skin diseases and the type of ingredients used in the products are  described in Ayurvedic texts, being useful in such treatments. The learned counsel for the appellant drew our attention to certain  decisions of this Court wherein Ayurvedic products have been held to be  falling in Chapter 30 of the Central Excise Tariff Act, 1985 and not under  Chapter 33.  In C.C.E. vs. Sharma Chemical Works 2003 (154) ELT 328  it  was held that the onus to prove that a particular product falls under a  particular head of the Central Excise Tariff is on the Revenue.  It was for the  Revenue to show and establish that the product in question was not a  medicament or that the common man did not understand the product as a  medicament.  In the present case the Revenue has miserably failed to  discharge this burden. In  C.C.E. vs. Sharma Chemicals Works 2003 (154) ELT 328 this  Court was considering whether "Banphool oil" could be classified as  medicament.  The product was a hair oil and all its ingredients were said to  be Ayurvedic which were found in Ayurveda text books.  It had 98% Til oil  and 2% Camphor, Amla and Chandan (sandalwood).  It was found that all  the ingredients of the hair oil were mentioned in Ayurveda text books and,  therefore, the product was liable to be classified as medicament.  C.C.E. vs. Pandit D.P. Sharma 2003 (154) ELT 324 was again a case  of hair oil named "Himtaj Hair Oil".  The Court emphasized the common  parlance test and found that a common man understood the said hair oil as a  medicinal hair oil and not hair oil of common use as a hair oil.  Accordingly,  this Court upheld its classification as a medicament. Naturalle Health Product (P) Ltd. vs. C.C.E. 2003 (158) ELT 257.   Two appeals were under consideration in this case.  One was with respect to  Vicks Vapo Rub and Vicks Cough Drops while the other was with respect to  Sloan’s Balm and Sloan’s Rub.  Both the appeals were allowed holding that  the items in question were classifiable under the Chapter dealing with  medicament in the Central Excise Tariff Act.  In this case this Court  followed the twin test earlier upheld by this Court in C.C.E  vs. Richardson  Hindustan Ltd.  1989 (42) ELT A100.  Further this Court observed: "39     We are also of the opinion that when there is no  definition of any kind in the relevant taxing statute, the  articles enumerated in the tariff schedules must be  construed as far as possible in their ordinary or popular  sense, that is, how the common man and persons dealing  with it understand it.  If the customers and the  practitioners in Ayurvedic medicine, the dealers and the  licensing officials treat the products in question as  Ayurvedic medicines and not as Allopathic medicines,

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that fact gives an indication that they are exclusively  Ayurvedic medicines or that they are used in Ayurvedic  system of medicine, though it is a patented medicine.   This is especially so when all the ingredients used are  mentioned in the authoritative books on Ayurveda.  As  rightly contended by the Counsel for the appellants, the  essential character of the medicine and the primary  function of the medicine is derived from the active  ingredients contained therein and it has certainly a  bearing on the determination of classification under the  Central Excise Act.  As held in Amruthanjan case, the  mere fact that the ingredients are purified or added with  some preservatives does not really alter their character."

In Amritanjan vs. C.C.E.  1995 (77) ELT 500(SC) this Court held that  Amritanjan Pain Balm having Menthol IP, Camphor IP, Turpantine IP and  Methyl IP, Salicylate IP as main ingredients, was classifiable as Ayurvedic  medicine under Chapter 30 of the Tariff. It was noticed that the ingredients  were known both to Ayurvedic and western sciences.   Still the classification  as medicament was upheld.

       BPL Pharmaceuticals vs. C.C.E. (1995) Suppl.3 SCC 1 was a case in  which "Selsun Shampoo" was under consideration for purposes of  classification under the Tariff Act.  According to the manufacturers this  shampoo was a medicated shampoo meant to treat dandruff which is a  disease of the hair.  This Court held that having regard to the preparation,  label, literature, character, common and commercial parlance, the product  was liable to be classified as a medicament.  It was not an ordinary shampoo  which could be of common use by common people.  The shampoo was  meant to cure a particular disease of hair and after the cure it was not meant  to be used in ordinary course.         Muller & Phipps (India) Ltd .vs. C.C.E. 2004 (167) ELT374 was a  case of Johnson Prickly Heat Powder.  This powder was again held to be a  medicament because it was not an ordinary talcum powder but a powder to  be used to get rid of the problem of prickly heat.  Similar was the case  reported in 1999 (112) ELT 22 Manisha PharmaPlasto Pvt. Ltd.  vs. .Union  of India.   In this case the product under consideration was Nycil Prickly  Heat Powder.  The ingredients whereof were   Chlorphensesin IP             -       1% w/w  Zinc Oxide IP                  -       16% w/w Starch IP                               -       51% w/w Talc Purified IP to                     -       100% w/w The powder was held to be not an ordinary talcum powder but one falling in  the category of medicament.         Lastly we were referred to  Dabur (India) Ltd. vs. C.C.E.  2005 (182)  ELT 290 (SC).  This is a judgment of  three Judge Bench of this Court and  the products under consideration were Janam Ghunti and Lal Tail.   Regarding Lal Tail, this Court held that it was liable to be classified as  medicament under Chapter 30 as all its imgredients were found to be in  Ayurvedic texts.  However, regarding other product the matter was  remanded for further consideration on basis of evidence to be recorded. From the above judgments it follows that the law is settled on the  applicability of the twin test for determination of classification of a product.   We have already found that the twin test is satisfied in the present case  regarding most of the items under consideration.

The word ’medicament’ is not defined anywhere while the word  "cosmetic" is defined in the Drugs and Cosmetics Act, 1940 as under:

"A ’cosmetic’ means any article intended to be rubbed, poured,  sprinkled or sprayed on, or introduced into, or otherwise  applied to, the human body or any part thereof for cleansing,  beautifying, promoting attractiveness, or altering the  appearance, and includes any article intended for use as a  component of cosmetic."

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It will be seen from the above definition of cosmetic that the cosmetic  products are meant to improve appearance of a person, that is, they enhance  beauty.  Whereas a medicinal product or a medicament is meant to treat  some medical condition.  It may  happen that while treating a particular  medical problem, after the problem is cured, the appearance of the person  concerned may improve.  What is to be seen is the primary use of the  product.  To illustrate, a particular Ayurvedic product may be used for  treating baldness.  Baldness is a medical problem.  By use of the product if a  person is able to grow hair on his head, his ailment of baldness is cured and  the person’s appearance may improve.  The product used for the purpose  cannot be described as cosmetic simply because it has ultimately led to  improvement in appearance of the person.  The primary role of the product  was to grow hair on his head and cure his baldness. The extent or the quantity of medicament used in a particular product  will also not be a relevant factor.  Normally, the extent of use of medicinal  ingredients is very low because a larger use may be harmful for the human  body.  The medical ingredients are mixed with what is in the trade parlance  called fillers or vehicles in order to make the medicament useful.  To  illustrate an example of Vicks Vaporub is given in which 98% is said to be  paraffine wax, while the medicinal part i.e. Menthol is only 2%.  Vicks  Vaporub has been held to be medicament by this Court in CCE  vs.  Richardson Hindustan Ltd. 1989 (42) ELT A100.  Therefore, the fact that  use of medicinal element in a product was minimal does not detract from it  being classified as a medicament. In order to be a medicinal preparation or a medicament it is not  necessary that the item must be sold under a doctor’s prescription.  Similarly  availability of the products across the counter in shops is not relevant as it  makes no difference either way.         The learned counsel for the respondent drew our attention to Note 2 of  Chapter 33 of the Central Excise Tariff which is as under:  "Note 2.       Heading Nos.33.03 to 33.07 apply, inter alia, to  products, whether or not mixed (other than aqueous distillates  and aqueous solutions of essential oils), suitable for use as  goods of these headings and put up in packings with labels  literature or other indications that they are for use as cosmetics  or toilet preparations or put up in a form clearly specialized to  such use and includes products whether or not they contain  subsidiary pharmaceutical or antiseptic constituents, or are held  out as having subsidiary curative or prophylactic value."

On the basis of this Note it was argued that even if a product had some  curative or prophylactic value, it will still be cosmetic.  We cannot accept  this argument.  The learned counsel has overlooked the use of the word  ’subsidiary’ in the said note from which it follows that a subsidiary curative  or prophylactic use will not convert a cosmetic into medicament.  We have  tried to illustrate this by giving the example of bald man treating his  baldness by use of Ayurvedic product.  The curative use of the product is  primary in that example and not subsidiary. The subsidiary result is  improvement in appearance.  Therefore, in our view, Note 2 to Chapter 33  does not help the respondent.  Rather Note 5 to the said Chapter, makes it  clear that the products which fall under heading 33.04 are primarily beauty  or make up preparations.  They may incidentally help in protection against  skin irritants.  They may also help as a skin tonic, yet they are cosmetics  because skin protection is subsidiary benefit. In this connection reference may also be made to Note 1(d) to Chapter 30  of the Central Excise Tariff.  The said Note reads as under:

       Note 1 starts with "This Chapter does not cover". (a)     \005\005\005\005\005\005\005 (b)     \005\005\005\005\005\005\005 (c)     \005\005\005\005\005\005\005 (d)     "Preparations of Chapter 33 even if they have therapeutic  or prophylactic properties."

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 Thus preparations falling in Chapter 33 even if they have therapeutic or  prophylactic properties will not fall under Chapter 30 which deals with  pharmaceutical products.  The reasons for this appears to be that even  cosmetics may have something to improve skin or other parts of the body  where they are used.  In that sense they may have some therapeutic value yet  they remain cosmetic.

          From the above discussion it is clear to us that the Revenue has failed  to make out any case in support of its stand that all the products in question  fall under Chapter 33 i.e. under Heading Note 33.04.

Now we will take up each item of the products of appellant and  examine as to under which classification they fall.  The products at Serial  Nos.1,2,3,4,7,9,10 & 11 viz.  Puma Neem Facial Pack (Neemal),Puma Anti- Pimple Herbal Powder (Pimplex), Puma Herbal Facial Pack (Herbaucare),  Puma Herbal remedy for Facial Blemishes,  Puma Hair Tonic Powder  (Sukeshi),  Puma Anti-Dandruff Oil (Dandika),  Puma Shishu Rakshan Tel  and Puma Neem Tulsi are clearly medicinal products and are intended to  treat certain medical conditions of the human body and therefore, in view of  the above tests, are liable to be classified as medicaments falling under  Chapter 30 and Note 3003.20/3003.30  Items at Serial No.5,6 and 8 viz.    Puma Herbal Massage Oil,  Puma Herbal Massage Oil for Women and Puma  Scalp Tonic Powder (Scalpton) however do not appear to be of any  medicinal property and it is difficult to classify them under the head of  medicament.  I   n fact the learned counsel for appellant conceded that these  three items do not qualify to be treated as medicaments.  Therefore, the same  will be liable to be classified as "cosmetic" under Chapter head 33.04.   Regarding these 3 items the matter will have to go to the Assistant Collector  for quantification of the duty for the relevant period.  Subject to this, the  appeals are allowed.  No costs.

Civil Appeals No.1414-1416/2004  In view of the above these appeals stand dismissed.