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CASE NO.: Appeal (civil)  5401 of 2007

PETITIONER: Union of India and Anr

RESPONDENT: Vicco Laboratories

DATE OF JUDGMENT: 26/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.      5401        OF 2007 (Arising out of SLP (C) No. 12476 of 2007)

Dr. ARIJIT PASAYAT, J.  

       Leave granted.  

       Challenge in this appeal is to the order passed by a  Division Bench of the Bombay High Court allowing the writ  petition filed by the respondent. Challenge in the writ petition  was to the show cause notice dated 29th April, 2005 issued by  the Commissioner of Customs and Central Excise, Nagpur  (hereinafter referred to as the ’Commissioner’) on the ground  that the Commissioner was seeking to re-open and re-litigate  the issues which have been finally concluded by the decision  of the High Court and this Court in favour of the writ  petitioner and, therefore, the said show cause notice was  without jurisdiction and had been issued in arbitrary exercise  of power and that it is an abuse of process of law.  

       The petition was resisted on the ground that at the stage  of show cause notice there should not be any inference. In fact  the notice was issued pursuant to the liberty given by this  Court in C.A.Nos. 7896-97/2003 disposed of by a three-Judge  Bench by order dated December 7, 2004. The High Court  accepted the position that normally the High Court should not  interfere at the show cause notice stage. But in view of the  factual scenario the Court entertained the writ petition and  decided in favour of the respondent.  

       Background facts in a nutshell are as follows:         The respondent is a manufacturer of various products  including Vicco Vajradanti and Vicco Turmeric which are  stated to be ayurvedic medicines. A show cause notice dated  8th  November, 1976 was issued requiring the respondent to  satisfy as to why the said products should not be classified as  "cosmetics" and not "ayurvedic medicines". This show cause  notice is hereinafter referred to as the "Ist SCN". After hearing  the respondent, the Commissioner under order, dated 4th   June, 1977 classified the said products as "cosmetics". The  same was challenged by the respondent  by way of Civil Suit  No.143 of 1978 in the Court of Civil Judge, Senior Division,  Thane, which came to be decreed in favour of the respondent  holding that the said products were "ayurvedic medicines",  and therefore, cannot be classified as  "cosmetics". The

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appellants carried the matter in an appeal by filing First  Appeal No.613 of 1982 before the High Court without any  success as the same was dismissed on 27th April, 1988  holding that the products were "Ayurvedic medicines". The  Special Leave Petition preferred by the appellants being SLP  No.1918 of 1989 was dismissed on 6th September, 1990.  Simultaneously, the respondent had also filed the Special  Leave Petition No.14082 of 1988 which came to be disposed of  by an order dated 19th April, 1993, while affirming the  judgment of this Court with a rider that the claim for refund of  the amounts already paid, would be subject to ascertaining  whether the amounts were passed on to the purchasers or not,  and that the consequential relief shall be subject to the  provisions of section 11B of the Central Excise and Salt Act,  1944 (in short the ’Act’)  as amended by Act 40/1991. On 28th February, 1986, Central Excise Tariff Act, 1985  (in short ’Tariff Act’) was introduced, to be effective from Ist  March, 1986. Under the Old Tariff Act, the ayurvedic  medicines fell under the Notification No.234 of 1982, the  products being listed at Sl. No.21. In term of the Tariff Act,  the product was sought  to be classified by the respondent   under Chapter 30 sub-heading 3003.30 and the same was  approved by Assistant Commissioner, Nagpur, by his order  dated 6th October, 1986. Pursuant       to      the direction   by  the Commissioner, a show cause notice dated 3rd July, 1987   was issued requiring the respondent to show cause as to why  the products should not be classified as cosmetics falling  under Chapter 33. This was the second Show Cause Notice in  relation to the same products, and hereinafter is referred to as  the "2nd  SCN". After the reply being filed to the 2nd SCN, the  same was recalled under the order dated 21st June, 1989. The  matter was, however, carried in appeal before the  Commissioner of Central Excise (Appeals) but the same was  withdrawn on 26th  December, 1989.  On 31St October, 1996, the Central Board of Excise  issued a circular withdrawing its earlier clarification dated 12th   May, 1989 in respect of Vicco Products and asked the  authorities to reopen and finalise the classification of Vicco  products on the basis of the judgment in Shree Baidyanath  Bhavan Vs. CCE Nagpur, reported in 1996(83) ELT 492 : 1996  (9) SCC 402. Consequently, fresh show cause notices dated 2nd  May, 1997,  18th  September, 1997 and 27th October, 1997  came to be issued requiring the respondent to satisfy as to  why the products should not be classified as  "cosmetic" falling  under Chapter 33. These three show cause notices are  hereinafter referred to as the "3rd SCNs". Meanwhile, by Telex  dated 8.9.1997, the  Board further clarified that the circular  dated 31.10.1996 is general in nature and the Vicco products  having been subjected to the specific judgment and order of  the High Court affirmed by this Court, the circular would not  have overriding effect. The department further sought opinion  of the Law and Judiciary Department on 13.11.1997.  Thereafter, the Union of India moved an application being IA-1  of 1999 in this Court in Civil Appeal No.2123 of 1993 arising  out of the SLP No.14082 of 1988 which was filed by the  respondent for clarification of the order dated 19th April, 1993  with reference, to Shree  Baidyanath’s  judgment        (supra). On 17.07.2000 the said application was withdrawn  stating that the authorities will act in accordance with the  provisions of law, which statement was recorded by this Court  while disposing of the said application. On 14.5.2001 with reference to the 3rd SCNs, the Deputy  Commissioner passed orders classifying the respondent’s  products as "cosmetics" falling under Chapter 33. The  respondent preferred appeal before the Commissioner of

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Central Excise (Appeals) which came to be allowed by an order  dated 10.01.2002. The appellant  carried the matter in appeal  before CEGAT, which came to be dismissed by an order dated  03.02.2003. The appellant filed special leave petition before  this Court. The same were converted into the Civil Appeals  No.7896-97 of 2003 and the appeals were dismissed by this  Court on 07.12.2004. Again, on 29.04.2005 a fresh show cause notice came to  be issued requiring the respondent to satisfy as to why the  products should not be held as products under Chapter 33.  The same was questioned before the High Court and by the  impugned judgment the same was quashed.   

                The stand of the appellants in support of the appeal is  that the liberty granted by this Court in the earlier case was  on the footing that there was need for factual adjudication on  applying correct position. In the earlier round of litigation  the  foundation of the revenue’s case was the decision in Shree  Baidyanath Ayurved Bhawan’s case (supra). This Court  categorically held in the said case as follows:

2. In this connection your kind attention is also  invited to the Board’s Circular No. 11/91-CX-1  dated 19.4.03 (copy enclosed) whereby the Board  had circulated order No. 22/91-C, dated 8.1.91 of  CEGAT in the case of CCE, Indore Vs. M/s. Shree  Baidynath Ayurved Bhavan Ltd. to the fluid  formations. The Hon’ble Tribunal relying on its  earlier orders No. 438-439/85-C, dated 7.6.1985  (1985) (11) ELT 175 (tribunal) and No. 714-715/90- C, dated 10.7.90 (1991 (51) ELT 502 (tribunal), all  in the cases of M/s. Shree Baidyanath Ayurved  Bhavan is not an Ayurvedic drug or medicine and it  is appropriately classificable under heading No.  33.06 of the. CETA, 1985. Aggrieved by the  judgments of the CEGAT the assessee had gone in  appeal to Supreme Court. The appeals of M/s.  Dabur India Ltd. on the same issue were also tagged  with the appeal of Shree Baidyanath Ayurved  Bhavan Ltd.         3. Now the Hon’ble Supreme Court vide its  judgment dated 30.3.1995 (1996 (83) ELT 392 (SC)  (copy enclosed), has dismissed the appeal of M/s.  Shree Baidyanath Ayurved Bhavan Ltd. and M/s.  Dabur India Ltd. and upheld the judgments of  CEGAT wherein it had been held that the product    "Dant Manjan Lal" is a toilet preparation and not a   medicinal preparation (Ayurvedic) and therefore not  classifiable  as a medicine (Ayurvedic) and  accordingly not  eligible for the benefit of exemption  notification. The judgment of Supreme Court is  being circulated to all the field formations of CBCE  for necessary action in the matter.     4. Therefore, keeping in view the aforesaid judgment  of Supreme Court the Board has decided to  withdraw its aforesaid instructions contained in  letter No.F.No.1031/14/88-CS.3 dated 12 5.1989.  You may therefore  decide classification  of the  goods in question in the light of Hon’ble Supreme  Court’s said judgment under intimation to the  Board.

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  It was submitted that fresh materials had been  considered and it has been found that the products are to be  classified under Entry 33.04 and 33.06 and  not by Entry  3003.31. Reference is also made to the Notes in Chapter 30  and Chapter 33. So far as Chapter 30’s notes are concerned  reference is made to notes 1 and 2 and notes of Chapter 33  which read as follows:        "Chapter 30            1. This Chapter does not cover:

(a)     Food or beverages (such as, dietetic, diabetic  or fortified food, food supplements, tonic  beverages and mineral waters) (Section IV);

(b)     Plasters specially calcined or finely ground for  use in dentistry (Chapter 25);

(c)     Aqueous distillates or aqueous solutions of  essential oils, suitable for medicinal uses  (Chapter 33);

(d)     Preparations of Chapter 33 even if they have  therapeutic or prophylactic properties;

(e)     Soap or other products of Chapter 34  containing added medicaments;

(f)     Preparations with a basis of plaster for use in  dentistry (Chapter 34);

(g)     Blood albumin not prepared for therapeutic or  for prophylactic uses (Chapter 35).

2.      For the purposes of heading No.30.03:

(i)     ’Medicaments’ means goods (other than foods  or beverages such as dietetic, diabetic or  fortified foods, tonic beverages) not falling  within heading No.30.02 or 30.04 which are  either:-

(a)     Products comprising two or more  constituents which have been mixed or  compounded together for therapeutic or  prophylactic uses; or

(b)     unmixed products suitable for such uses  put up in measured doses or in packings for  retail sale or for use in hospitals.

(ii)    ’Patent or proprietary medicaments’ means any  drug or medicinal preparation, in whatever form, for  use in the internal or external treatment of, or for  the prevention of ailments in human beings or  animals, which bears either on itself or on its  container or both, a name which is not specified in  a monograph, in a Pharmacopoeia, Formulary or  other publications, namely:-

(a)     The Indian Pharmacopoeia; (b)     The International Pharmacopoeia; (c)     The National Formulary of India; (d)     The British Pharmacopoeia; (e)     The British Pharmaceutical Codex; (f)     The British  Veterinary Codex;

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(g)     The United States Pharmacopoeia; (h)     The National Formulary of the U.S.A.; (i)     The Dental Formulary of the U.S.A. and (j)     The State Pharmacopoeia of the U.S.S.R’

or which is a brand name, that is, a name or a  registered trade mark under the Trade and  Merchandise Marks Act, 1958 (43 of 1958), or any  other mark such as a symbol, monogram, label,  signature or invented words or any writing which is  used in relation to that medicine for the purpose of  indicating or so as to indicate a connection in the  course of trade between the medicine and some  person, having the right either as proprietor or  otherwise to use the name or mark with or without  any indicating of the identity of that person.                                  Chapter 33

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 specialised 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.  

4.      In relation to products of heading Nos.  33.03, 33.04 and 33.05, conversion of powder  into tablets, labelling or relabelling of  containers intended for consumers or  repacking from bulk packs to retail packs or  the adoption of any other treatment to render  the products marketable to the consumer,  shall be construed as ’manufacture’.

6. Heading No. 33.05 applies, inter alia, to the  following products; brilliantines, perfumed hair  oils, hair lotions, pomades and creams, hair  dyes (in whatever form), shampoos, whether or  not containing soap or organic surface active  agents".

       It was submitted that the products are sold across the  counter and without prescription. The outward packings also  described as cosmetics.  

       The primary stand also is that the High Court should not  have interfered at the show cause notice stage.  

In response, learned counsel for the respondent with  reference to history of the long drawn litigation submitted  that the High Court has rightly taken note of various factual  aspects and quashed the show cause notice.   

In Dabur India Ltd. v. Commissioner of Central Excise,  Jamshedpur, (2005 (4) SCC 9), this Court reiterating its

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earlier decision in Commissioner of Central Excise, Calcutta v.  Sharma Chemical Works (2003 (5) SCC 60) held that merely  because a product is sold across the counters and not under  a doctor’s prescription does not by itself lead to the  conclusion that it is not a medicament. It was also held that  in the product the percentage of medicament may be small  but that by itself does not ipso facto mean that the product  is not a medicament. It was held that generally the  percentage or dosage of the medicament will be such as can  be absorbed by the human body and that the medicament  would necessarily be covered by fillers/vehicles in order to  make the product usable.  

In Meghdoot Gramodyog Sewa Sansthan, U.P. vs.  Commissioner of Central Excise, Lucknow  (2005 (4) SCC 15)  this Court had held that the products cannot be classified as  cosmetics solely on the basis of outward packing of the  products. It was specifically held that the composition and  the curative properties of the product  being admitted, it was  not open to the department to hold the product to be  cosmetics merely by reason of the outward packing.   In Naturalle Health Products (P) Ltd. v. Collector of  Central Excise, Hyderabad (2004 (9) SCC 136) it was held  that the essential character of 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 Act. Further  re-iterating its earlier decision in Amrutanjan Ltd. v. CCE  (1996 (9) SCC 413) this Court held that "the mere fact that  the ingredients are purified or added with some preservatives  does not really alter their character."

First round of show cause notice dated 8.11.1976  states as  follows: "M/s Vicco Laboratories Ltd. furnished  Photostat copies of the certificates bearing Nos.  A/Cert/12/75 dated 6.1.1976 and  A/Cert/388/76 dated 6.1.70 issued by Food  and Drug Administration, Maharashtra State,  Bombay in support of their claim.

       M/s Vicco Laboratories, Dombivli are   hereby required to show cause to the Asst.  Collector, central Excise, Kalyan Division,  Kalyan why "Vicco Vajradanti Paste" and Vicco  Turmeric Vanishing Cream should not  continue to be classified as tooth paste. T.I.  No.14FF and Cosmetic & Toilet preparation  T.I. 14 FF respectively as these products are  marketed and are known in the Trade parlance  as tooth paste and vanishing cream and not as  Ayurvedic medicies."

Suit No.143/1998 was filed challenging the show cause  notice.

Whether the two products Vicco Vajaradanti and Vicco  Turmeric Skin Cream were Ayurvedic Medicines or  Cosmetics (toothpaste, vanishing cream, cosmetic cream)  was adjudicated in Thane Suit No.143 of 1978, where  evidence was led by the plaintiff (Vicco Laboratories) and by  the defendants (Revenue Department). Amongst the issues  framed were issue Nos. 1 to 3 reading as follows: (i)     Do Plaintiffs prove that their products

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Vicco Vajaradanti and Vicco Vanishing Cream  are Ayurvedic medicinal preparations? (ii)    Do Defendants prove that Vicco  Vajaradanti falls under item 14 FF of first  schedule of Central Excise and Salt Act, 1944?   (Tooth paste including dental cream)? (iii)   Do defendants prove that Vicco Turmeric  Vanishing cream falls under item 14F (1) of the  said schedule? (Cosmetic and toilet  Preparation for the care of the skin).

Eleven witnesses were examined on behalf of the  plaintiff  and three witnesses on behalf of the Department.  The finding of the trial Court on issue Nos. 1 to 3 is as  follows:         "In the result the plaintiff have proved  their product Vicco Vajaradanti and Vicco  Turmeric as Ayurvedic medicinal preparations  whereas the defendants have failed that they  fall under tariff items 14FF and 14F.  Therefore, Vicco Vajaradanti is not merely a  tooth paste but a medical formulation meant  for treatment of tooth and gum trouble  whereas Vicco Turmeric does not simply give a  promise beauty but is meant for treatment of  dermatitis. Accordingly, the issue No.1 is held  in the affirmative and the issue Nos. 2 and 3 in  the negative."

       In appeal No.613/1982 filed by the Department in the  Bombay High Court, the High Court by judgment dated  27.4.1988 held:

"Whether the two products are medicine or  merely tooth, paste and vanishing cream or  rather a cosmetic cream has to be decided on  this record. On the record as is available to us,  it is more than amply proved by overwhelming  evidence that the products would be excisable  under Entry 14 E and at the rates prescribed  from time to time in respect of the said entry.  The consumers and doctors, and the later  category will include the general practitioners  dentists and Ayurvedic experts, consider that  the two products are medicines and further  that they are Ayurvedic medicines. In this  respect even the first two witnesses who were  examined on behalf of the defendants were  ultimately forced, much against their  inclination, to concede that these products  were prescribed by doctors and sold by them,  under doctors’ prescriptions. The third witness  examined on behalf of the defendants has not  carried the matter any further and her evidence  is almost totally useless as far as these  proceedings are concerned. In addition to this,  we have the classifications made by various  governmental authorities including the Sales  Tax Commissioner accepting the status of the  two products as Ayuvedic medicines. Last but  not the least, we have unshaken testimony of  P.W. 11 Dr Antarkar, admittedly an expert on  Ayurvedic medicines.

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There is overwhelming evidence,  therefore, on the record which is almost one  sided-to establish that the two products under  consideration must be regarded as Ayurvedic  medicines although they may also be used as  tooth paste and are used as cosmetic cream.   The High Court however held  that the plea of plaintiff  Vicco Laboratories raised an oral arguments that the  products were "exclusively ayurvedic medicines (and  therefore, wholly exempt under Entry 14E) could not be  accepted since there were no pleadings to that effect:  therefore they were taxable at 12= %  as "patent and  proprietary medicines". (Entry 14E) The respondent and the Revenue both approached this  Court by SLPs being SLP No. 14082 of 1988 (by Vicco  Laboratories) and SLP No. 1918 of 1989 (by Department)  against the judgment and order dated 27.4.1988 of the  Bombay High Court. SLP No.1918/1989 was dismissed by  this Court on 6.9.1990 whereas consent order dated  19.4.1983 came to be passed in  SLP No.14082/88.  

"We have heard Sri K.K. Venugopal, learned senior  counsel for the appellants and Sri K.T.S. Tulsi,  learned Additional Solicitor General for the  respondents. Leave      granted.

2.      The parties have broadly agreed to certain  terms for the final disposal of this appeal.

3. In terms of the said agreement the parties accept  judgment of the Bombay High Court that the  products in question are rightly classifiable as  Ayurvedic Medicines. The stand of the Revenue is  that Ayurvedic medicines are excluded from tariff  Item No. 14-E and are classifiable under tariff item  68 of the erstwhile Central Excise Tariff and entitled  to full exemption under Serial No. 21 of Notification  No. 234/82-CE dated 1st November 1982, a position  which the appellants accept.

4. The question of the refund of the amounts paid  would depend on whether the amounts were passed  on to the purchasers or not. The consequential  relief, if any, shall therefore, be subject to the  provisions of Section 118 of the Central Excises and  Salt Act, 1994 as amended by ACT 40 of 1991.

5.      In terms of the compromise we affirm the  judgment of the Bombay High Court dated 27th  April, 1988 subject to the modifications indicated  above.

6.      The appeal is disposed of accordingly, No.  costs."

       Clarification application filed before this Court by the  Department that the Consent Order dated 19.4.1993 did not  apply to the Tariff Act was dismissed as withdrawn on  17.7.2000.

       Meanwhile, the  Tariff Act,  came to be passed which  repealed the old Tariff Act. The new entries were: Chapter 30 - dealt with Pharmaceutical products

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Chapter 33 - dealt with Essential Oils and Resinoids,  Perfumery, Cosmetic or Toilet Preparations.  

Meanwhile before the judgment and order of Bombay  High Court and of this Court in Thane Suit, afresh (2nd) round  of Show cause notices for the period December 1986 to March  1989 were issued. In the show cause notice it was alleged as  follows:  

"Whereas it appears that these products namely  Vicco Vajradanti Powder Paste are meant for oral or  dental hygiene and are used as tooth powder and  tooth paste, the same appear to be classifiable  under sub-heading 3306.00 and chargeable to duty  at 15%. Similarly, Vicco Turmeric appears to be a  Vanishing Cream falling under subheading 3304.00  and; "Whereas no material change in the composition of  above mentioned products has been taken place,  these products appear to be tooth powder, tooth  paste and vanishing cream classifiable under  heading 3306.00 and 3304.00 respectively, and Whereas, Vicco Turmeric Cream has mainly  prophylactic cosmetic effect and it cannot be  considered Ayurvedic medicine,  it appears to be  Vanishing Cream only and;   Whereas as per Note 1(d) of Chapter 30-  "Preparation of Chapter 22 even if they have  therapeutic and Prophylactic properties, they are  classifiable, under Chapter 33 and are excluded  from Chapter 30 and; Whereas, Vicco Vajradanti Powder is put up in the  form of "Dant Manjan" and paste has been put up  in the form of "Tooth Paste" and Vicco Turmeric has  been put up in the form of Cosmetic/ Vanishing  Cream; and

Whereas, for the last so  many years you were  advertising and marketing these products as tooth  powder, tooth paste and vanishing cream  respectively. Accordingly, Vicco Vajradanti Powder   and Paste appear to be preparation for oral and  dental hygiene falling under sub-heading 3306.00  and Vicco Turmeric appears to be falling under sub- heading 3304.00."

Advice was received from the Central Board of Excise and  Customs by letter dated 12.5.1989 which  stated as follows:  

"Sir,

Sub: Central Excise - Vicco Vajradanti (powder  and paste) and Turmeric - Classification under  the Central Excise Tariff Act, 1985 -regarding. l am directed to refer to your letter F. No. V.  Ch. 39 (30) 1/89/ 1369, dated the 4 n  January, 1989 on the subject mentioned above  and to say that the matter of classification of  Vicco Vajradanti (powder and paste) and Vicco  Turmeric Cream manufactured by M/s Vicco  laboratories has been got examined in  consultation with he Advisor (Ayurvedic and  Siddha) in the Directorate General of Health  Services.

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2. The Board has taken note of Note (2) to  Chapter 30 and 33 of the Schedule to the  Central’ Excise Tariff Act, 1985 coupled with  the opinion of the Advisor (Ayurvedic and  Siddha) in the Directorate General of Health  Services including the decision of the Bombay  High Court feels that there are stronger  reasons to treat the subject good as Ayurvedic  medicines. 3.      Accordingly, it is viewed that the above- mentioned products would be appropriately  classifiable as Ayurvedic Medicaments under  sub-heading No.3003.30 of the Schedule of the  Central Excise Tariff Act, 1985".  

At this juncture, it would be necessary to take note of  the stand of learned counsel for the appellants that in the  packages meant for export different descriptions were given.  In this context it is to be noted that in the packing meant for  export instead of the word ’Ayurved’,  the expression ’Herbal’  is used. The special permission was taken from the Drugs  Control Authority for such use. The letter dated 14.6.1996 of  the Government of India, Ministry of Health & Family Welfare  (Department of ISM & H) is relevant. The same reads as  follows:                                                 "New Delhi, dated 14.6.1996

To         The Asstt. Drug Controller (India),         New Custom House, Fort,         Bombay-400038.  

       Sub: Export of Vicco Vajradanti Tooth Paste,  Powder and Turmeric Cream- regarding  

       A representation received from the firm in  regard to export of the subject products with  labeling acceptable to importing countries and  the modification made in the labels, which are  otherwise used in the country. Having  examined the matter, it is opined that there  may be no objection in export of subject  products labeled as herbal products. This  permission is limited to export purpose only.

                                               Sd/- Illegible.

                                               (Ashwini Kumar)                                 For Drug Controller General (I)

       Copy to:         Shri G.K. Pendharkar,         Vicco Laboratories,         25, Jerbai Wadia Road,         Parel, Bombay -400012"   Normally, the writ court should not interfere at the stage  of issuance of show cause notice by the authorities. In such a  case, the parties get ample opportunity to put forth their  contentions before the concerned authorities and to satisfy the  concerned authorities about the absence of case for  proceeding against the person against  whom the show cause notices have been issued.  Abstinence from interference at the stage of

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issuance of show cause notice in order to relegate   the parties to the proceedings before the concerned  authorities is the normal rule. However, the said rule  is not without exceptions. Where a Show Cause  notice is issued either without jurisdiction or in an  abuse of process of law, certainly in that case, the  writ court would not hesitate to interfere even at  the stage of issuance of show cause notice. The interference at  the show cause notice stage should be rare and not in a  routine manner. Mere assertion by the writ petitioner that  notice was without jurisdiction and/or abuse of process of law  would not suffice. It should be prima facie established to be  so. Where factual adjudication would be necessary,  interference is ruled out.  

Case of the respondent that the classification  of the said products having attained finality  pursuant to the decision of this Court, the appellants have no  jurisdiction to issue impugned show cause notice on the  ground on which it has been issued and it virtually amounts  to re-opening of the issue which stands concluded by the  decision of this Court, and that therefore it is an abuse of  process of law. The High Court after referring to the history of  litigation rightly concluded that the matter stood concluded   by judgments of this Court and the High Court in respondents’  case.  

In the earlier judgment this Court had given liberty to the  Department in the following terms:         "Although the adjudicating authority had  found in the course of the hearing that the market  survey indicated that the product in question was  known as a cosmetic we do not go into the question  as this was not the ground on which the show  cause notice was issued. The show cause notices  having proceeded on a misapprehension of the tests  laid down in Shree Baidyanath’s case, the same  cannot be sustained.

       The appeals are accordingly dismissed without  any order as to costs. It will be open to the  Department to take such test if otherwise so entitled  in respect of the products for the purpose of  classifying the products under the appropriate tariff  heading as they may be advised."

       However, as rightly observed by the High Court the  impugned show cause notice was nothing but a repetition of  the earlier show cause notices with slight variations which in  no way was relatable to any different test.                   When the factual scenario is considered in the  background of the legal principles set out above, the  inevitable conclusion is that the appeal is sans merit,  deserves dismissal which we direct. Costs made easy.