Full Judgment Text
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CASE NO.:
Appeal (civil) 1512 of 2001
PETITIONER:
COMMISSIONER OF CENTRAL EXCISE CALCUTTA-JV
RESPONDENT:
PANDIT D.P. SHARMA
DATE OF JUDGMENT: 30/04/2003
BENCH:
S.N. VARIAVA & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2003 (3) SCR 1041
The Judgment of the Court was delivered by
S.N. VARIAVA J. This appeal is against the Judgment dt. 19th May 2000
passed by Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta.
Briefly stated the facts are as follows :
The Respondents are manufacturing a product known as "Himtaj oil". The
Respondents filed a classification list classifying "Himtaj oil" as
Ayurvedic medicine under subheading 3003.30. A show cause notice was issued
to them as to why their oil should not be classified as "perfumed hair oil"
under subheading 3305.10. The Respondents replied to the show cause notice.
The Assistant Collector accepted the Respondents’ case that their oil fell
under subheading 3003.30. For so holding the Assistant Collector inter alia
relied on the following material:
(a) Drug licence issued by the Drug Controller.
(b) A letter issued by the Superintendent of Ayurvedic Department,
Benaras which stated that the product was an Ayurvedic medicine.
(c) A study report of the Institute of Postgraduate Education and
Research in Ayurved, Calcutta on "Himtaj oil" which classified this oil as
an Ayurvedic product which relieved pain in headaches and migraine and also
provided relief against dandruff.
(d) A report prepared by the Range Officer, based on market inquires
conducted by him with dealers, wholesalers retailers, customers chemists
and druggist, which showed that all treated "Himtaj oil" as an Ayurvedic
Medicament.
(e) A re-testing Report of the Chief Chemist, New Delhi which stated
that no Ayurvedic perfumery could be detected in "Himtaj oil"
(f) SSI Registration Certificate obtained by the Respondents for
manufacturing Ayurvedic oil under a drug licence.
Against the decision of the Assistant Collector the Revenue filed an appeal
to the Commissioner (Appeals). By his order dated 10th July, 1997 the
Commissioner (Appeals) allowed the appeal of the Revenue. The Commissioner
(Appeals) held that there was no evidence to prove that the product was
being ordinarily prescribed by medical practitioners or that it was used to
deal with a specific disease. The Commissioner (Appeals) held that there
was no evidence to show that the common man used the product as a medicine.
Against the Order dated 10th July 1997 the Respondents filed an Appeal to
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CEGAT. By the impugned order CEGAT has allowed the Appeal. Hence this
appeal by the Revenue.
At the stage it must be mentioned that in this Civil Appeal the question of
classification relates to "Himtaj oil". On board along with this Appeal
were a number of other Appeals which related to classification of
"Bhanphool oil". The arguments of learned Additional Solicitior General,
Mr. Raju Ramachandran, in this Appeal were based upon the submissions made
in respect of "Bhanpool oil". It was submitted that if the submissions
regarding "Bhanphool oil" are accepted by this Court then on the same
reasoning it would have to be held that "Himtaj oil" was not an Ayurvedic
medicament. Reliance was also placed upon the authority of this Court in
the case of Shree Baidyanath Ayurvedic Bhavan Ltd. v. The Collector of
Central Excise Nagpur, reported in (1996) 83 ELT 492 (SC). In this case it
is held that resort to scientific and technical not meanings should no be
had but that the expression must be understood in its popular meaning. It
was held that ordinarily a medicine would be prescribed by medical
practitioner and would be used for a limited time and not every day unless
it was so prescribed to deal with a specific disease like diabetes. On this
basis it was held that the product in question namely "Dant Manjan Lal"
(tooth powder) was not a medicine.
We have today, by a separate judgment, negatived the submissions of the
Revenue in respect of "Bhanphool oil". Thus for reasons set out in that
separate judgment the arguments of the Revenue even in respect of "Himtaj
oil" cannot be accepted. The authority relied upon is also of no
assistance. In that case there was no evidence to show that the common man
considered that product as a medicine. In this case the report of the Range
Officer shows the dealers, wholesalers, retailers, customers, chemists and
druggist all consider "Himtaj oil" to be an Ayurvedic medicament. Apart
from that the other material relied upon by the Assistant Collector (which
has been set out hereinabove) also clearly shows that "Himtaj oil" is an
Ayurvedic medicament. In this view of the matter we see no infirmity in the
impugned judgment.
Accordingly the Appeal stands dismissed. There will however be no order as
to costs.