Full Judgment Text
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CASE NO.:
Appeal (civil) 7610 of 1999
PETITIONER:
COMMISSIONER OF CENTRAL EXCISE, CALCUTTA
RESPONDENT:
SHARMA CHEMICAL WORKS
DATE OF JUDGMENT: 30/04/2003
BENCH:
S.N. VAR1AVA & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2003 (3) SCR 1027
The Judgment of the Court was delivered by
VARIAVA, J. In all these Appeals facts are common and the question of law
is common. Therefore, all are being disposed of by this common judgment, in
all these Appeals the question is whether "Banphool Oil" is classifiable as
a "perfumed hair oil" or as an "Ayurvedic Medicament". It must be mentioned
that prior to 28th January, 1986, the question was whether "Banphool Oil"
could be classified under Tariff Item 68 i.e. "Ayurvedic Medicament" or
under Tariff Item 14F(ii) i.e. "Perfumed Hair Oil". After this date, the
question is whether it falls under Tariff Item 3305.10 i.e. "perfumed hair
oil" or 3003.30 i.e. "Ayurvedic Medicament". Civil Appeal No. 7610 of 1999
is against the judgment dated 24th June, 1999 passed by the Customs, Excise
and Gold (Control) Appellate Tribunal (CEGAT). In this case the Judicial
Member took the view that Banphool Oil was classifiable as an Ayurvedic
medicament whereas the Technical Member took the view that it was
classifiable as a perfumed hair oil. In view of this difference, the matter
was referred to a third Member who has agreed with the Judicial Member and
held that Banphool Oil is classifiable as an Ayurvedic Medicament. Thus by
majority, CEGAT has held that Banphool Oil is classifiable as an Ayurvedic
Medicament under Tariff Item 3003.30.
Civil Appeals Nos. 283-284 of 2001 are against judgment of CEGAT dated 3rd
April, 2000. Civil Appeal No. 2640 of 2001 is against the judgment of CEGAT
dated 27th July, 2000 and Civil Appeals Nos. 707-709/2003 are against the
judgment of CEGAT dated 26th February, 2003. In all these matters CEGAT has
followed the majority judgment dated 24th June, 1999 and held that Banphool
Oil is classifiable as an Ayurvedic Medicament.
Learned Additional Solicitor General, Mr. Raju Ramachandran pointed out
that the Respondent in Civil Appeal No. 7610 of 1999 had initially
classified Banphool Oil as a toilet preparation. He points out that this
initial classification was sought to be revised as an Ayurvedic Medicament.
He submitted that this showed that even the Respondent considered their
product to be a toilet preparation. He submitted that it is an admitted
position that 98% of Banphool Oil consists of "til oil" and the remaining
2% are ayurvedic ingredients like amla, chandan, camphor etc. He submitted
that in order to suppress the strong smell of til oil, perfumery is added:
He further submitted that the cartons and labels of Banphool oil show that
it is a perfumed hair oil. He submitted that it is an admitted position
that Bhanpool Oil is sold across the counter and stored not just by
chemists but even by ordinary grocers. He submitted that there is no
evidence led in any of the matters to show that the common man uses this
oil as a medicine.
Reliance is placed upon the case of Shree Baidyanath Ayurved Bhavan Ltd. v.
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Collector of Central Excise, Nagpur reported in 1996 (83) ELT 492 (SC),
Where the question was whether "Dant Manjan Lai" was an Ayurvedic
Medicament or not. This Court approved the findings of the Tribunal that in
interpreting statute like the Excise Act, the primary object of which is to
raise revenue for which purpose various products are differently
classified, resort should not be had to the scientific and technical
meanings but to their popular meaning. It was held that Courts have to see
what the persons who use the product understand that product to be. It was
held that generally medicines are prescribed by medical practitioners and
used for a limited time and not every day. It was held that as the product
was not sold under a medical prescription it was not an Ayurvedic
Medicament.
Reliance was also placed in the case of Alpine Industries v. Collector of
Central Excise, New Delhi reported in [2003] 3 SCC 111. In this case the
question was whether "Lip Salve" could be classifiable as a preparation for
care of skin or as a medicament. Admittedly the product was mainly supplied
to the Defence Department for use by military personnel who are posted in
high altitude areas. The Court approved the principle laid down in Shri
Baidyanath Ayurved Bhawan ’s case supra that in interpreting provisions of
statute like the Excise Act the popular meaning as understood by the users
should be applied and not the scientific or technical meaning. It was held
that in deciding under which Entry a product would fall, help could be
taken from the Chapter Notes.
Reliance was also placed upon the decision of the Sales Tax Tribunal in the
case of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Shri Sadhna
Aushadhalaya reported in Sales Tax Cases 1963 Vol. 14 page 813. In this
case the question was whether Maha Bhringraj hair oil was a toilet article
or a medicinal preparation. The Tribunal held as follows:
"It is a common ground that if the hair-oil manufactured and sold by the
assessee does not fall under the above entry, then it is not covered by any
other entry in Schedule I or II. The question, therefore, that arises for
determination is whether Maha Bhringraj Hair-oil is an article falling
under entry No. II. The assessee’s argument which prevailed with the Board
of Revenue, is that the hair-oil manufactured by them is not a "toilet
article" but a "medicinal preparation" inasmuch as the oil is prepared and
manufactured according to a certain formula given in Ayurvedic medicinal
book, that it has a bad odour, and that it is a specific for headache,
burning of eyes, and for preventing falling hair. In our opinion, there can
be little doubt that the oil in question is a "toilet article" as well a
"cosmetic". The question whether an oil, which is to be applied to the
hair, is or is not a "cosmetic" or a "toilet article" does not depend on
its fragrance or on the formula according to which it is manufactured. A
hair-oil is clearly not a pure and simple perfume, and the question whether
it has a sweet fragrance or a disagreeable odour is in no way determinative
of its character as a hair-oil. Every hair-oil whether it is manufactured
scientifically with ingredients containing some medicinal properties or
crudely, is intended and for beautifying ultimately the hair and the
appearance of the person using it. A hair oil may cool the brain or improve
the system and induce sound sleep, but none the less it does not because of
these qualities become a medicial preparation. Now the word "cosmetic" has
been defined in Webster’s International Dictionary as meaning "any external
application intended to beautify and improve the complexion, skin or hair."
Other dictionaries also give the same meaning. The meaning of the word
"toliet", as given in Webster’s International Dictionary, is "act or
process of dressing, especially, formerly of dressing hair, now usually
cleansing and grooming of one’s person". A "toilet preparation" is any
preparation which is intended to affect, and conceivably to improve the
bodily appearance. The words "cosmetics" and "toilet", being words of
everyday use, must be construed not in any technical or scientific sense,
but as understood in common parlance and in commercial language. A hair-oil
intended to be applied to the hair and supposed to act as a hair-tonic and
to prevent dandruff, failing hair and baldness and to cool the brain does
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not cease to be a hair-oil merely because it is manufactured and sold by a
person dealing in medicines and according to a process more complex than
used in the manufacture of ordinary hair-oil. The object of all hair-oils
is to tidy the hair, to promote luxuriant growth of hair-and to prevent
dandruff and falling hair and it cannot be denied that if a hair-oil
produces the effects proclaimed and claimed in regard to it, then the
appearance of the person using it is undoubtedly improved. We have no doubt
that the hair-oil manufactured by the assessee is a "toliet article" and
falls also within the meaning of the term "cosmetics."
Based on the above decisions, the learned Additional Solicitior General,
Mr. Raju Ramachandran submitted that the product Banphool Oil is clearly
classifiable as a perfumed hair oil under Tariff Item 3305.10 and not as an
Ayurvedic medicament under Tariff Item No. 3003.30. He also referred to
Chapter Note l(d) to chapter 30 which provides that preparation under
Chapter 33 even if they have therapeutic or prophylactic properties would
not fall under pharmaceutical products but would remain as toilet
preparations.
On the other hand Mr. Lakshmikumaran submitted that Chapter 30 dealt with
all types of medicines. In support of this submission he pointed out
various Tariff Entries under this Chapter. He submitted that medicaments
could be patented or proprietary medicaments or even medicaments which are
not patented or proprietary. He submitted that medicaments could be as per
the formula set out in various pharmacopoeias or they could be under some
patented formula of a particular party. He submitted that the ingredients
having medicinal properties would necessarily be of a very small percentage
in the medical preparation. He submitted that if the percentage was large
it could be harmful to the human body. He submitted that as a general rule
the medical ingredients would necessarily have to be mixed with
fillers/vehicles in order to make that medicament palatable and/or usable.
By way of an example, he submitted that Vicks Vaporub contained 98% Parafin
Wax whereas the medicament i.e. menthol is only 2%. He submitted that
merely because the filler/vehicle was of a large percentage did not ipso
facto mean that the product was not a medicament. He submitted that, in any
event, every single ingredient in Banphool Oil was contained in various
pharmacopoeias and text books which deals with Ayurvedic medicines. He
pointed out that in Bhavaprakash til oil is mentioned as an Ayurvedic
ingredient.
Mr. Lakshmikumaran also referred to Board Circular dated 5th December, 1991
wherein it has ben directed that if there is any doubt or dispute regarding
classification of a product whether it is an Ayurvedic medicament the
matter should be referred to the State Drug Licencing Authority concerned
with Ayurveda and that if a further reference is necessary then it should
be sent to the Advisor, Ayurveda/Sub Commissioner in the Office of the Drug
Controller India, Director General of Health Services, New Delhi. Mr.
Lakshmikumaran pointed out that in fact a reference had been made to the
Drug Controller. He pointed out that the Drug Controller by a letter dated
13th May, 1985 had opined as follows:
"Banphool oil is an Ayurvedic preparation. Therefore 1 think that there is
sufficient force in the argument of the party to claim its classification
under erstwhile T.I. 68 as Ayurvedic preparation."
Mr. Lakshmikumaran further pointed out that for manufacture of Banphool Oil
the respondent had a drug licence issued to them and that the product was
being manufactured under such licence. He submitted that the burden of
proving that the product was not an Ayurvedic medicament and/ or that the
common man did not understand this product as a medicament was on the
revenue. In support of his submission he relied upon the case of Hindustan
Ferodo Ltd. v. Collector of Central Excise Bombay reported in 1997 (89) ELT
16 (SC) wherein this Court has held that the onus of establishing that a
product falls within a particular item is on the revenue. It has been held
that if the revenue leads no evidence, then the onus is not discharged. He
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submitted that the Department had not made any enquiry in order to produce
any evidence to show that in common parlance this product was not a
medicament. He submitted that the label of the product lays down the dosage
to be used for purposes of curing an ailment. He submitted that Chapter
Note l(d) could be of no assistance to the revenue as they would first have
to show that the good was classifiable under Chapter 33. He relied upon
Chapter Note 2 and 6 of Chapter 33 which read as follows:
"2. Heading Nos. 33.03 to 33.07 apply, inter alia, the 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 tables, 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.
Heading No. 33.05 applies, inter alia, to the following products’
brilantines perfumed hair oils, hair lotions, pomades and creams, hair dyes
(in whatever form) shampoos, whether or not containing soap or organic
surface active agents."
He submitted that admittedly Banphool Oil would not fall into any of the
categories set out therein. He further submitted that Tariff Item 33.05 was
in respect of preparations for use on the hair. He submitted that Banphool
Oil was not for use on the hair as it was a preparation for use on the
head.
Mr. Lakshmikumaran relied upon the case of B.B.L Pharmaceuticals Ltd. v.
Collector of Central Excise Vadodara reported in [1995] Supp 3 SCC 1. In
this case the question was whether the product "Selsun" was a medicament or
a toilet preparation. This Court held as follows:
"24. Elaborating the above submissions, the learned counsel for the
respondents invited our attention to chapter notes of. Chapter 30 and
Chapter 33 and also the rules of interpretation. According to the learned
counsel a careful reading of chapter notes of Chapter 30 would show that
preparations of Chapter 33 even if they have therapeutic or prophylactic
properties would not fall under Chapter 30. However, he fairly admitted
that ’medicaments’ are those that have therapeutic or prophylactic uses
nevertheless those medicaments, if they are classifiable under Chapter 33
or Chapter 34 will not fall under Chapter 30, according to him, if they are
more specifically preparation falling under Chapter 33 or Chapter 34. In
other words, he wanted to equate the product in question to ’shampoo’
enumerated under Heading No. 33.05. He also invited our attention to the
fact that the appellants before the coming into force of the new Tariff Act
described the product as shampoo and they have omitted the word ’shampoo
deliberately only to claim that the product would fall under Chapter 30.
25. We do not think we can accept all the contentions of the learned
counsel for the respondents except certain obvious admitted positions. The
submission that the product in question must be equated to shampoo falling
under Chapter 33 is not at all correct.
26. It is true that the learned counsel for the appellants have placed
reliance on the definition of the words "cosmetic and drug" as defined in
the Drugs and Cosmetics Act, 1940. On a perusal of the definitions, we can
broadly distinguish cosmetic and drug as follows:
"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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and
"A ’drug’ includes all medicines for internal or external use of human
beings or animals and all substances intended to be used for or in the
diagnosis, treatment mitigation or prevention of any disease or disorder in
human beings or including preparation applied on human body for the purpose
of repelling insects."
27. We cannot ignore the above broad classification while considering the
character of the product in question. Certainly the product in question is
not intended for cleansing beautifying promoting attractiveness or altering
appearances. On the other hand it is intended to cure certain disease as
mentioned supra.
28. The fact that the appellants have previously described the product as
"Selsun Shampoo" will not conclude the controversy when the true nature of
the product falls for determination. In fact, notwithstanding the fact that
the appellants have described the product as Selsun Shampoo, the Central
Board of Excise and Customs, as noticed earlier, has classified the same as
patent and proprietary medicine. The respondent have accepted the same.
Therefore, there is no force in the submission of the learned counsel for
the respondents that the product must be equated with shampoo.
29. The contention based on chapter notes is also not correct. Once of the
reasons given by the authorities below for holding that Selsun would fall
under Chapter 33 was that having regard to the composition, the product
will come within the purview of Note 2 to Chapter 33 of the Schedule to
Central Excise Tariff Act, 1985 is without substance. According to the
authorities the product contains only subsidiary pharmaceutical value and,
therefore, notwithstanding the product having a medicinal value will fall
under Chapter 33. We have already set out Note 2 to Chapter 33. In order to
attract Note 2 to Chapter 33 the product must first be a cosmetic, that the
product should be suitable for use as goods under Heading Nos. 33.03 to
33.08 and they must be put in packing as lables, literature and other
indications showing that they are for use as cosmetic or toilet
preparations. Contrary to the above in the present case none of the
requirements are fulfilled. Therefore, Notes 2 to Chapter 33 is not
attracted. Again it is without substance the reason give by the authorities
that the product contains 2.5% w/v of Selenium Sulfide which is only of a
subsidiary curative or prophylatic value. The position is that therapeutic
quantity permitted as per technical reference including US Pharmacopoeia is
2.5%. Anything in excess is likely to harm or result in adverse effect.
Once the therapeutic quantity of the ingredient used, is accepted,
thereafter it is not possible to hold that the constituent is subsidiary.
The important factor is that this constituent (Selenium Sulfide) is the
main ingredient and is the only active ingredient.
30. As rightly contended by the learned Senior Counsel for the appellants
that merely because there is some difference in the tariff entries, the
product will not change its character. Something more is required for
changing the classification especially when the product remains the same.
We have noticed that the Excise authorities have accepted the decision of
the Central Board of Excise and Customs treating the product in question as
patent and proprietary medicine by not challenging the same or by allowing
the same to become final. We have also seen that the Central Board of
Excise and Customs has given numerous points in support of its conclusion
for holding the product in question as patent and proprietary medicine.
Principle among them at the risk of repetition can be recalled. They are as
follows.
"(a) It was used for the treatment of a disease known as Seborthoeic
Dermatitis commonly known as dandruff:
(b) It was manufactured under a Drug licence.
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(c) The Food and Drugs Administrative had certified it as a drug.
(d) That the Drug Controller had categorically opined that Selenium
Sulfide present in Selsun was in a therapeutic concentration.
(f) It was included as a drug in the National Formulary, US Pharmacopoiea
and the Merck Index.
(g) It fulfilled the requirements of a drug as understood in common
parlance.
(h) Selenium Sulfide was sold only on medical prescription and used as a
medicine.
(i) Selsun was not a medicated shampoo, which was recommended as
conditioners with subsidiary medicinal effect. Selsun was on the contrary
being recommended by physicians.
(J) Various standard books and treatises such as (i) The Pharmacological
Basis of Therapeuticus by Goodman and Gilman (ii) Harry’s Cosmeticology
referred to Selsun as a drug.
(k) It was being marketed as a patent or proprietary medicine through
registered phamacists who hold valid drug licence, and not by any dealer,
like other shampoos.
(1) Abbott’s literature referred to it as a drug and such literature was
addressed to physicians, also the label on the container mentioned that the
product was to be used as directed by physicians.
(m) Affidavits of leading doctors established that Selsun was being
manufactured for use as a drug.
(n) That the Excise Department had made inquires from the trade and found
that other shampoos like Clinic, Tara, Halo etc. were much cheaper and that
their advertisement campaigns were to leave the hair silky, soft and
healthy’ whereas Selsun was not so advertised. On the contrary there are
precautions in use mentioned."
31. The above conclusions of the Central Board of Excise and Customs were
reached on the basis of materials produced before it. The same materials
are also placed before us and we have gone through them. We find no good
reason to differ from the above conclusion of the Central Board of Excise
and Customs especially in the absence of any other materials produced by
the respondents to persuade us to take a different view. Certain contrary
findings of the authorities below such as that ’Selsun’ is only a medicated
shampoo without any accepted supporting materials cannot be sustained."
Mr. Lakshmikumaran submitted that all the above criteria are fulfilled in
respect of Banphool Oil also. He submitted that merely because a product
was available across the counter did not mean that it is not a medicament.
He pointed out that various products like Vicks, Strepsils, Mediker are
available across the counters and even available in grocers shops. He
submitted that a medicament may be prescribed by a Doctor but could also be
available without a Doctor’s prescription. He submitted that dosage would
be indicated on the label only in respect of medicaments. In support of his
submission, he relied upon the case of Collector of Central Excise v.
Pharmasia (P.) Ltd. reported in 1990 (47) ELT 658 (Tribunal), wherein it
has been held that mediker is classifiable under Tariff Item 33.03 as an
Ayurvedic medicament. He also relies upon the case of Amrutanjan Ltd. v.
Collector of Central Excise reported in [1996] 9 SCC 413, wherein the
question was whether Amrutanjan Pain Balm was an Ayurvedic medicament. It
was held that merely because the ingredients were known not only to
Ayurveda but to the western science, would not make the balm non-Ayurvedic.
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We have heard the parties and considered the submissions made by them. We
have also read the opinion of the majority Bench and the minority opinion
of the Technical Member. It is a settled law that the onus or burden to
show that a product fall within a particular Tariff Item is always on the
revenue. Mere fact that a product is sold across the counters and not under
a Doctors prescription does not by itself lead to the conclusion that it is
not a medicament. We are also in agreement with the submission of Mr.
Lakshmikumaran that merely because the percentage of medicament in a
product is less does not ipso facto mean that the product is not a
medicament. Generally the percentage or dosage of the medicament will be
such as can be absorbed by the human body. The medicament would necessarily
be covered by fillers/vehicles in order to make the product usable. It
could not be denied that all the ingredients used in Banphool Oil are those
which are set out in the Ayurveda text Books. Of course the formula may not
be as per the text books but a medicament can also be under a patented or
proprietary formula. The main criteria for determining classification is
normally the use it is put to by the customers who use it. The burden of
proving that Banphool Oil is understood by the customers as an hair oil was
on the revenue. This burden is not discharged as no such proof is adduced.
On the contrary we find that the oil can be used for treatment of headache,
eye problem, night blindness reeling head weak memory, hysteria amnesia
blood pressure, insomnia etc. The dosages required are also set out on the
label. The product is registered with Drug Controller and is being
manufactured under a drug licence.
Another aspect to be kept in mind is that the revenue is bound by the
circulars issue by the Board. The Board circular dated 5th December, 1991
clearly stipulates that in case of doubt the matter should be referred to
the Drug Controller. The matter was referred to the Drug controller who, as
stated above, has opined that it is an Ayurvedic medicament. If the
department was still entertaining any doubts they could have referred the
matter to the Adviser, Ayurveda/Sub-Commissioner in the Office of Drug
Controller, Director General of Health Services New Delhi. This was not
done.
For the above reasons, we are in agreement with the majority opinion of the
Tribunal that the Banphool Oil is classifiable as an Ayurvedic medicament
under Tariff Item 3003.30. In this view of the matter, we see no infirmity
in the impugned judgments. The Appeals accordingly stand dismissed. There
shall be no order as to costs.