COMMISSIONER OF CENTRAL EXCISE Vs. VICCO LABORATORIES

JUDGEMENT

(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 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.