BURMAN LABORATORIES LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The issue involved in this appeal, filed by M/s. Burman Laboratories Ltd., is whether "Keshraj Oil" manufactured by them is classifiable under Sub -heading 3003.30 of the Schedule to the Central Excise Tariff Act as an Ayurvedic medicine or under Heading 3305.10 as a perfumed hair oil.

(2.) 1 Shri V. Lakshmi Kumaran, learned Advocate, submitted that "Keshraj Oil" is clearly identified, recognised and treated as an Ayurvedic medicine and its main value is therapeutic value or prophylactic value; that the impugned product is an ayurvedic medicine containing all the ingredients specifically mentioned in the authoritative Ayurvedic Text and the ayurvedic medicinal value is the main function and not a subsidiary function; that Note 2 to Chapter 33 of the Tariff is not attracted as the labels affixed to the impugned product no where mentions that it is hair oil; that on the other hand it is clearly mentioned in the label as under : "Dabur Keshraj Oil is a speciality formulated Ayurvedic Cooling Oil. Its ingredients are traditionally known to cool the scalp, relieve eye -strains and headaches. Antiseptic property of Dabur Keshraj Oil prevents occurrence of minor scalp infections and controls dandruff."

(3.) Countering the arguments, Shri R.C. Sankhla, learned SDR, submitted that as per Note 2 to Chapter 33, Headings 33.03 to 33.07 are applicable to the products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value; that the impugned product has been labeled and marked as 'Dabur Keshraj Oil' thereby indicating that same is meant for application on hair; that thus it is classifiable under Heading 35.05 even though it possesses any subsidiary prophylactic or curative value. He also mentioned that the decision in Himtaj case is not applicable as the Larger Bench observed in para 36 of the decision that "a reference to the printing on the cartons and the literature contained therein would not show that the product is meant for use as a cosmetic or toilet preparations"; that the impugned product is not used for a limited period, it is not used in prescribed dosages and is not prescribed by a doctor whereas in the case of Himtaj Oil doses and time period were specified. The learned SDR also empasised that the Appellants are adding perfumes positively; that it has been observed by the Larger Bench in Him Taj case after referring to Bombay High Court in 22 STC 381 and Madras High Court in 1985 (22) E.L.T. 701 that "in order to name oil as 'perfumed oil', perfume has to be added, in it by a positive action; that 'Sugandhit Dravyas' are made up of Eucalyptus oil and Mentha Oil whereas these two oils have also been mentioned in the label; that as perfume has been added positively, the impugned product is a perfumed hair oil. Finally, he relied upon the decision in the case of Shree Badyanath Ayurved Bhawan Ltd. v. CCE - 1996 (83) E.L.T. 492 (S.C.).