Order
1. The question which is raised for our decision in these appeals is whether the respondent's products, namely, turmeric skin cream and vajradanti toothpaste and tooth powder are classifiable under Chapter 30 of the Central Excise Tariff Act or under Chapter 33 of that tariff. Chapter 30 deals with pharmaceutical products whereas Chapter 33 deals with essential oils and resinoids; perfumery cosmetics and toilet preparations. The period in question is October 1996 up to June 1997.
2. The respondent's products were initially classified as “a patent or proprietary medicine not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively Ayurvedic, Unani, Siddha or homoeopathic” under Tariff Heading 14-E of the First Schedule to the Central Excises and Salt Act, 1944. It was also classified under Chapter 30 after coming into force of the Central Excise Tariff Act, 1985 as a pharmaceutical product. By three show-cause notices dated 2-5-1997, 16-9-1997 and 27-10-1997 relating to the period between 31-10-1996 and June 1997, the appellant sought to allege that the assessee's products should be really classified under Chapter 33 as a cosmetic. It was also alleged that in any event the products of the appellant could not be considered to be medicine within Tariff Sub-Heading 3003.31 The basis of the show-cause notices was the decision of this Court in Shree Baidyanath Ayurved Bhavan Ltd. v. CCE (1996) 9 SCC 402 and the tests allegedly laid down in that decision for determining whether a product should be classified under Chapter 33 or Chapter 30.
3. The two tests according to the show-cause notice for determining whether a product was classifiable as a pharmaceutical product under Chapter 30 of the Central Excise Tariff were (1) whether the products are being used daily and are sold without prescription by a medical practitioner; and (2) whether the products are available in general store, department/grocery shops. The Department's case in the show-cause notice is that as these two tests were not fulfilled, the product failed to come within the prescription of pharmaceutical products in Chapter 30.
4. The mere decision of a court of law without more cannot be justification enough for changing the classification without a change in the nature of a product or a change in the use of the product, or a fresh interpretation of the tariff heading by such decision.
5. It is not the appellant's case that any of these circumstances were present in this case. Besides, the decision in Shree Baidyanath case (1996) 9 SCC 402 does not lay down the test of classification as concluded by the Department at all. In that case the Tribunal had considered the evidence produced before it with regard to the sale and purchase of the product in question. It was found as a matter of fact that in common parlance the product was not described as a medicinal preparation but was described as a toilet preparation. This Court affirmed the tests laid down by the Tribunal, namely, that since the primary object of the Excise Act was to raise revenue, resort should not be had, for the purpose of classification, to the scientific and technical meaning of the terms and expressions used therein but to their popular meaning, that is to say, the meaning attached to that by those using the product.
6. The Court also noted that the Tribunal had rejected the assessee's claim in that case holding that “ordinarily a medicine is prescribed by a medical practitioner and it is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetes”. It may be noted that the Court affirmed this line of reasoning of the Tribunal on the ground that it was “in general agreement with it”. The Court did not itself affirmatively hold that what was laid down by the Tribunal as a test to be “ordinarily” followed was invariably to be the sole test for determining whether a product is to be proved as a medicine or as a cosmetic. Indeed this Court in B.P.L Pharmaceuticals Ltd. v. CCE 1995 Supp (3) SCC 1 has upheld the classification of “Selsun”, medicated shampoo as a medicine and not as a cosmetic and held that in order to attract Note 2 to Chapter 33 the product was first proved to be a cosmetic and
“that the product should be suitable for use as goods under Headings 33.03 to 33.08 and they must be put in packing as labels, literature and other indications showing that they are for use as cosmetic or toilet preparation”.
7. These observations however were not made in connection with Chapter Note 1(d) of Chapter 30 the impact and purport of which may have to be considered in an appropriate case.
8. This Court in CCE v. Sharma Chemical Works (2003) 5 SCC 60 has also disapproved the approach of the Department in holding that the product was a cosmetic only because it was not sold by chemists or under doctor's prescription. This, according to the decision, does not by itself lead to the conclusion that it is not a medicament. The Court reaffirmed the test as categorically laid down in Shree Baidyanath (1996) 9 SCC 402, namely, that the burden of proof that a product is classifiable under a particular tariff heading is on the Revenue and must be discharged by proving that it is so understood by consumers of the product or in common parlance. (See also Meghdoot Gramodyog Sewa Sansthan v. CCE (2005) 4 SCC 15, (2004) 174 ELT 14.)
9. 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.
10. The show-cause notices having proceeded on a misapprehension of the tests laid down in Shree Baidyanath case (1996) 9 SCC 402, the same cannot be sustained.
11. The appeals are accordingly dismissed without any order as to costs. It will be open to the Department to take such tests 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.