advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 27, 2015

whether Vaseline Intensive Care Heel Guard (for short, 'VHG') is to be treated as merely a skin care preparation or it is a medicament having curing properties. Based on the answer to the aforesaid question, classification of this product will be determined. If it is only a skin care preparation then VHG is classifiable under Chapter Heading 3304.00 of the First Schedule to the Central Excise Tariff Act, 1985 (for short, the 'Act'). On the other hand, if it is to be treated as a medicament, VHG would get covered under Chapter Heading 3003.10 of the First Schedule. The rate at which the excise duty is payable depends on the said classification. =As pointed out above, the product in question, Vaseline Intensive Care Heel Guard, is marketed as a solution for cracked heels and it is claimed that this solution is specially developed by the scientists at Vaseline Research. The composition of this product includes salicylic acid I.P. 1.5% w/w. lactic acid 8.0% w/w. Triclosan 0.1% w/w. Cream base – q.s. Salicylic acid is described as keratolytic substance having bacteriostalic and fungicidal properties used in the treatment of fungus infection of the skin. The Tribunal, while deciding that the aforesaid product is a medicament, pointed out that the product was formulated and essentially used for treatment of 'cracked heels', protection from further cracks in the human heels due to extreme climatic conditions and low humidity, constant exposure of feet to water and due to absence of shoe or other protection while walking. It also found that this product was manufactured under a drug licence as drug authorities had treated the same as a medicament. The Tribunal also found that the usage of this product was related to the effect of therapeutic or mitigating substance of prophylactic substances added. Thus, the effect of mitigation of an external condition is primary effect and the effect of smoothing the skin was secondary in nature and, therefore, it was to be treated as a medicament and classified under Chapter 30. Interestingly, all the aforesaid features of the product are accepted by the Department. However, only on the ground that salicylic acid contained in the product is marginal, the Department took the view that it was a subsidiary substance. Having regard to the exposition of law narrated above, this was clearly an erroneous approach on the part of the Revenue as percentage of the said substance is immaterial to label it as subsidiary. Another more important factor which needs to be stated at this stage is that though the burden was on the Department, it did not lead any evidence or produce any material to discharge this onus. It simply went by the pamphlet of the product, that too selectively picking up that portion where the product was described as good for care of the skin as well, ignoring the fact that the same very literature gives more emphasis to the therapeutic value of the product. On the other hand, the assessee had filed various affidavits of the dealers as well as consumers in support of its plea that the product was essentially a medicament, which material was blissfully ignored by the Department. From the aforesaid, we conclude that the decision of the Tribunal holding the product in question to be a medicament and, therefore, covered by Chapter Heading 3003.10 is perfectly justified and does not call for any interference. The civil appeal is, accordingly, dismissed with no order as to costs.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1941 OF 2006


|COMMISSIONER OF CENTRAL EXCISE, CHENNAI-IV |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|HINDUSTAN LEVER LTD.                       |.....RESPONDENT(S)           |


                               J U D G M E N T

A.K. SIKRI, J.
                 The issue involved in the present appeal is as  to  whether
Vaseline Intensive Care Heel Guard (for short, 'VHG') is to  be  treated  as
merely a  skin  care  preparation  or  it  is  a  medicament  having  curing
properties. Based on the answer to the  aforesaid  question,  classification
of this product will be determined.  If it is only a skin  care  preparation
then VHG  is  classifiable  under  Chapter  Heading  3304.00  of  the  First
Schedule to the Central Excise Tariff Act, 1985 (for short, the  'Act').  On
the other hand, if it is to be  treated  as  a  medicament,  VHG  would  get
covered under Chapter Heading 3003.10 of the First  Schedule.  The  rate  at
which the excise  duty  is  payable  depends  on  the  said  classification.

Chapter  33  under  which  the  Revenue  wants  to  cover  VHG  pertains  to
'essential oils and resinoids; perfumery, cosmetic or  toilet  preparations'
and,  therefore,  40%  duty  is  paid.   Entry  33.04  thereof,   which   is
specifically sought to be attracted by the Revenue, reads as under:
“33.04  Beauty or make-up preparations and preparations for the care of  the
skin (other than medicaments), including sunscreen and suntan  preparations;
manicure or pedicure preparations”


If a particular product is to be covered  under  the  aforesaid  Entry,  the
basic  trait  of  the  said  product  is  that  it  is  beauty  or   make-up
preparations and preparations for the care of the skin. Some  products  like
sunscreen and suntan preparations; manicure  or  pedicure  preparations  are
specifically included, meaning thereby they are to be treated as  beauty  or
make-up preparations or preparations for care  of  the  skin.  At  the  same
time, medicaments are specifically excluded therefrom. We  would  also  like
to point out here certain chapter notes of  Chapter  30  which  are  pressed
into service by the Revenue in order  to  claim  that  VHG  is  nothing  but
preparation for the care of the skin. These are chapter notes 2  and  5  and
we reproduce the same as under:
“2.  Heading Nos. 33.03 to 33.07 apply, inter alia, to 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 labels, 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.”

“5.  Heading No. 33.04 applies, inter alia,  to  the  following  products  :
beauty creams, vanishing creams,  cold  creams,  make-up  creams,  cleansing
creams, skinfoods, skin tonics, face powders, baby powders, toilet  powders,
talcum powders and grease paints, lipsticks, eyeshadow and eyebrow  pencils,
nail polishes and varnishes, cuticle removers  and  other  preparations  for
use in manicure or chiropody and barrier creams to give  protection  against
skin irritants.”


On the other hand, as per the assessee VHG is a  medicament  and,  therefor,
it should be covered by Chapter 30. Chapter 30  deals  with  'pharmaceutical
products'. Entry 30.03, within  which  the  assessee  seeks  to  cover  this
product, reads as under:
“30.03           Medicaments (including veterinary
                 medicaments”

|     3003.10 |Patent or proprietary          |
|–            |medicaments, other than those  |
|             |medicaments which are          |
|             |exclusively Ayurvedic, Unani,  |
|             |Siddha, Homoeopathic or        |
|             |Bio-chemic                     |
|             |                               |
|   3003.20   |Medicaments (other than patent |
|–            |or proprietary) other than     |
|             |those which are exclusively    |
|             |used in Ayurvedic, Unani,      |
|             |Siddha, Homoeopathic or        |
|             |Bio-chemic systems             |
|             |                               |
|             |Medicaments, including those   |
|–            |used in Ayurvedic, Unani,      |
|             |Siddha, Homoeopathic or        |
|             |Bio-chemic systems;            |
|             |                               |
|   3003.31   |Manufactured exclusively in    |
|–            |accordance with the formulae   |
|             |described in the authoritative |
|             |books specified in the First   |
|             |Schedule to the Drugs and      |
|             |Cosmetics Act, 1940 (23 of     |
|             |1940) or Homoeopathic          |
|             |Pharmacopoeia of India or the  |
|             |United States of America or the|
|             |United Kingdom or the German   |
|             |Homoeopathic Pharmacopoeia, as |
|             |the case may be, and sold under|
|             |the name as specified in such  |
|             |book or pharmacopoeia.         |
|   3003.32   |Medicaments (including         |
|–            |veterinary medicaments) used in|
|             |bio-chemic system and not      |
|             |bearing a brand name.          |
|             |                               |
|   3003.39   |Other”                         |
|–            |                               |




The position which is taken by  the  assessee  is  that  VHG  is  patent  or
proprietary  medicament  and  is,  therefore,  classifiable  under   Chapter
Heading 3003.10 and only  15% duty  is  paid.   There  are  certain  chapter
notes attached to Chapter 30 as well and first two notes  are  relevant  for
our purposes which we reproduce below:
“1.   This Chapter does not cover:

(a)   Foods or beverages (such as, dietetic, diabetic  or  fortified  foods,
food supplements, tonic beverages and mineral  waters) (Section 1V);

(b)   Plasters specially calcined or finely  ground  for  use  in  dentistry
(Chapter 25);

(c)   Aqueous distillates or aqueous solutions of essential  oils,  suitable
for medicinal uses (Chapter 33);

(d)    Preparations  of  Chapter  33  even  if  they  have  therapeutic   or
prophylactic properties;

(e)   Soap or other products of Chapter 34 containing added medicaments;

(f)   Preparations with a basis of plaster for  use  in  dentistry  (Chapter
34);

(g)   Blood albumin not prepared for therapeutic or  for  prophylactic  uses
(Chapter 35).

2.    For the purposes of heading No. 30.03—

(i)   'medicaments' means goods (other  than  foods  or  beverages  such  as
dietetic, diabetic or fortified foods, tonic beverages) not  falling  within
heading No. 30.03 or 30.04 which are either:—

      (a)   products comprising two or more  constituents  which  have  been
mixed or compounded together for therapeutic or prophylactic uses; or.

      (b)   unmixed products suitable for  such  uses  put  up  in  measured
doses or in packings for retail sale or for use in hospitals;

(ii)  'Patent or  proprietary  medicaments'  means  any  drug  or  medicinal
preparation,  in  whatever  form,  for  use  in  the  internal  or  external
treatment of, or for the prevention of ailments in human beings or  animals,
which bears either on itself or on its container or both, a  name  which  is
not specified in  a  monograph,  in  a  Pharmacopoeia,  Formulary  or  other
publications, namely:—
      (a)   The Indian Pharmacopoeia:
      (b)   The International Pharmacopoeia;
      (c)   The British Pharmacopoeia;
      (d)   The British Pharmacopoeia;
      (e)   The British Pharmaceutical Codex;
      (f)   The British Veterinary Codex;
      (g)   The United States Pharmacopoeia;
      (h)   The National Formulary of the U.S.A.;
      (i)   The Dental Formulary of the U.S.A; and
      (j)   The State Pharmacopoeia of the U.S.S.R.;
or which is a brand name, that is, a name or a registered trade  mark  under
the Trade and Merchandise Marks Act, 1958 (43 of 1958), or  any  other  mark
such as a symbol, monogram,  label,  signature  or  invented  words  or  any
writing which is used in relation  to  that  medicine  for  the  purpose  of
indicating or so as to indicate a connection in the course of trade  between
the medicine and some person, having  the  right  either  as  proprietor  or
otherwise to use the name or mark with or  without  any  indication  of  the
identity of that person.”


While contrasting the two Entries, namely, Entry 3304.00  on  the  one  hand
and 3003.10 on the other, it can be discerned that if it is  a  product  for
care of the skin, then it would fall under Chapter Heading  3304.00  but  if
it is for the cure of skin disease then the  product  in-question  would  be
medicament; meaning thereby the inquiry has to  be  whether  it  is  a  care
product or a product meant for cure. Another  aspect,  while  comparing  the
two Entries, which needs to be mentioned is that Entry 3304.00  specifically
excludes medicaments. The obvious purpose is that if it is a medicament,  it
has to fall  under  Chapter  30.  Because  of  this  specific  exclusion  of
medicament from Chapter Heading 3304.00, necessary consequence  is  that  if
the Revenue wants to cover it under 3304.00, the onus is on the  Revenue  to
show that the particular product is not a  medicament.  At  the  same  time,
reading of this Entry along with chapter notes 2 and  5,  already  extracted
above, would indicate that  if  pharmaceutical  or  antiseptic  constituents
contained  in  the  product  are  only  subsidiary  in  nature,  or   having
subsidiary curative or prophylactic value, then  that  would  not  make  the
product  as  medicament.   Again,  certain   preparation   for   skin   like
preparations for use in manicure or chiropody and barrier creams which  give
protection against skin irritants are still to be  treated  as  preparations
for care of the skin and would not be treated as curing the  skin  diseases.
That is the clear intent of chapter note 5  of  Chapter  33.  This  is  made
further clear with the heading of chapter note no. 1(d) of Chapter 30  which
specifically  excludes  preparation  of  Chapter  33  even  if   they   have
therapeutic or prophylactic properties. However, a conjoint reading of  note
5 of Chapter 33 and note 1(d) of Chapter 30 needs  us  to  clarify  that  in
order to see as to whether a particular preparation falls under  Chapter  33
or not (or gets excluded from Chapter 30), such therapeutic or  prophylactic
properties have  to  be  subsidiary  in  nature.  Further,  medicaments  are
specifically defined in note 2 of Chapter 30  and  the  attributes  of  this
definition are to be kept in mind in order to decide  whether  a  particular
product is a medicament or not.
             To  put  it  in  a  nutshell,  if  a  particular   product   is
substantially  for  the  care  of  skin  and  simply  because  it   contains
subsidiary  pharmaceutical  or  antiseptic   constituents   or   is   having
subsidiary curative or prophylactic value, it would  not  become  medicament
and would still qualify as the product for  the  care  of  the  skin.  There
would be certain products which would be purely for the  care  of  skin  and
certain other products would be clearly medicament and such  cases  may  not
pose any problem. The issue of determination  as  to  whether  a  particular
product falls in Chapter 33 or Chapter 30 would arise in those  cases  where
certain products have the shades or qualities of both, namely, skin care  as
well as cure of skin  diseases.   In  such  cases,  the  necessary  exercise
requires to be undertaken.  Whenever product has  curative  or  prophylactic
value as well, but the  Department  still  wants  the  said  product  to  be
brought under Chapter Heading 3304.00, onus is on  the  Department  to  show
that it is not medicament.  For this,  it  will  have  to  demonstrate  that
curative or prophylactic value is only subsidiary  in  nature  or  that  the
product is covered by the description under chapter notes 5, namely,  either
it is chiropody or barrier cream to give protection against skin  irritants.
If the Department fails to discharge  this  onus,  the  product  has  to  be
treated as medicament and would be covered under Chapter 30.

In BPL Pharmaceuticals Ltd. v.  CCE, Vadodra[1], this Court  has  laid  down
the principles which are to be kept in mind while deciding as to  whether  a
particular product would fall under Chapter 30 or  under  competing  Chapter
33.  That was a case where  the  assessee  was  engaged  in  manufacture  of
Selenium Sulfide Lotion which contained  2.5%  selenium  sulfide  W/V.   The
assessee was manufacturing this product under a  loan  licence  from  Abbott
Laboratories in accordance  with  Abbott's  specifications,  raw  materials,
packing materials and quality control.  It was sold under the  private  name
'Selsun'.  The assessee in that case claimed that this product was  used  in
the therapeutic quantity i.e. 2.5% W/V which was the only active  ingredient
and other ingredient merely served the purpose of a  bare  medium.   It  was
also claimed that the product is manufactured under a  drug  licence  issued
by the Food  and  Drug  Administration.   The  assessee,  thus,  wanted  the
product to be classified under heading  3003.19  as  Pharmaceutical  Product
under Chapter 30.  However, the Revenue took the plea  that  it  would  fall
under sub-heading 3305.90 i.e.  under  Chapter  33.   Thus,  the  respective
contentions of the Department as well as the assessee  were  almost  on  the
same lines as in the present case, namely,  whether  the  said  product  was
Pharmaceutical product or it was a cosmetic/toiletry preparation.  The  only
difference was of sub-headings under those Chapters.  This Court  went  into
the essential characteristics of the product and found it that dominant  use
of the product was medicinal, as it was sold only  on  medical  prescription
as a medicine for treatment of  disease  known  as  Seborrhoeic  Dermatitis,
commonly known as Dandruff.  It was manufactured under a Drug  Licence;  the
Food and Drug Administration had certified  it  as  a  Drug;  and  the  Drug
Controller had categorically opined that Selenium Sulfide present in  Selsun
was in a therapeutic concentration etc.   The  relevant  passages  from  the
said judgment throwing light on these aspects are reproduced below:
“19. So far as medicinal properties of the product are concerned it  can  be
gathered from the technical and/or pharmaceutical references  that  Selenium
Sulfide has anti-fungal and anti-seborrhoeic properties and  is  used  in  a
detergent medium for the treatment of dandruff on the scalp which is  milder
form of Seborrhoeic Dermatitis and Tinea Versicolour 2.5% of  this  compound
is the therapeutic quantity.

                          xx          xx         xx

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 preparations falling under Chapter 33 or  Chapter  34.  In
other words, he wants  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 that 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.”
                                     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 animals, including preparations  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 appearance. On the other  hand  it  is  intended  to  cure  certain
diseases as mentioned supra.

                          xx          xx         xx

35. The learned counsel also placed reliance on a  number  of  judgments  to
support his argument that in common and commercial parlance the  product  is
known as medicine rather than  cosmetic.  As  pointed  out  already  and  in
support of that submission, affidavits and letters  from  chemists,  doctors
and customers are filed to show that the product is sold under  prescription
only  in  chemists’  shops  unlike  shampoos  sold  in  any  shop  including
provision shops. This conclusion, namely, that the product is understood  in
the common and commercial parlance as a patent and proprietary medicine  was
also found by the Central Board of Excise and Customs as early  as  in  1981
and accepted by the Excise  authorities  and  in  the  absence  of  any  new
material on the side of the respondents there is no difficulty in  accepting
this contention without referring to decision cited by the counsel  for  the
appellants.”

The aforesaid case draws  and  delineates  a  clear  distinction  between  a
'cosmetic' and a 'drug'.  It further lays down that essential  character  of
the product in question is to be kept in mind for  ascertaining  whether  it
would be a cosmetic or a drug.  Another  relevant  consideration,  which  is
highlighted, is to  see  whether  in  common  and  commercial  parlance  the
product is known as medicine or cosmetic/skin care product.  If the  product
is registered as medicament by the Drug Controller, that would be  a  strong
factor to consider it as having curative or prophylactic  value  and  it  is
not for the care of the skin per se.

This Court in Muller & Phipps (India) Ltd. v. Collector of  Central  Excise,
Bombay-I[2] was called upon to decide as  to  whether  prickly  heat  power,
which was manufactured and marketed by the appellant/assessee therein  under
the brand name Johnson's Prickly Heat Powder and Phipps Processed Talc,  was
a medicament or was simply a product for care of the  skin.  The  case  put-
forth by the assessee therein was that prickly heat power contains  a  range
of medicines and is used only for the treatment and  prevention  of  a  skin
ailment known as Milaria Rubra, commonly known  as  prickly  heat.   Prickly
heat powders are manufactured under a Drug Licence  issued  under  the  Drug
and Cosmetics Act, 1940 and have been treated as a drug and not  a  cosmetic
by the authorities under the Drugs Act.  On a reference made by the  Finance
Ministry, the Drug Controller of India has  opined  that  due  to  the  high
content of 5% boric acid in a prickly heat powder, it would be  classifiable
as a drug or  medicament and not  as  a  cosmetic.   From  1970  till  1985,
prickly heat powders have been classified and  assessed  under  Tariff  Item
14E of the old tariff as 'Patent or Proprietary Medicines'.    It  was  also
contended that prickly heat power not only relieves prickly heat faster  but
actually helps prevent it.  When a  person  perspires  profusely  the  sweat
stays on the skin too long and the person  becomes  a  potential  victim  of
prickly heat.  This specially formulated prickly  heat  powder  absorbs  the
sweat better and faster and prevents the build up of bacteria on  the  skin.
Therefore, the person avoids getting a red rash, itching  and  burning.   No
person who requires ordinary talk for the purposes  of  beautifying  her  or
himself would use the said  products  which  contain  the  aforesaid  active
therapeutic ingredients.  These products are known as, as already  mentioned
above, prickly heat/ Milaria Rubra.  The sale  of  these  products  is  much
higher in hot summer months when this disease frequently erupts.

Accepting the aforesaid case set up by the assessee therein, the Court  held
that the said prickly heat power was  a  medicament  for  treatment  of  red
rashes, itching and burning and not merely a powder for care of skin or  for
the purpose of beauty.  The Court was greatly influenced by the fact that  a
department like Drug  Controller  and  Central  Sales  Tax  authorities  had
accepted the product in question as medicinal preparation.   The  discussion
which is relevant for our purposes is contained in paras 11 and  12  of  the
said judgment and we reproduce the same hereinbelow:
“11.  But in the present case when throughout the meaning given to  products
in question not only by the department itself but also by other  departments
like Drug Controller and Central Sales Tax authorities is that  the  product
in question is a medicinal preparation should be accepted.

12.  Applying the principles enunciated in  BPL  Pharmaceuticals  Ltd.  case
and taking into consideration various circumstances  as  to  the  manner  in
which the goods had been treated on the earlier occasions by the  department
and the product having  been  utilised  with  reference  to  the  commercial
parlance and understanding, that it had been treated as a drug it would  not
cease to be one notwithstanding the fact that new tariff act has  come  into
force.  What is to be seen in such cases is when  in  the  common  parlance,
for purposes of the Drug Act, for purposes of Sales Tax Act and  in  various
findings recorded on earlier occasions by the department itself having  been
noticed, the conclusion is inevitable that the products in question must  be
treated as medicinal preparations.”
Interplay of Chapter 30 vis-a-vis Chapter 34  (which  deals  with  detergent
products) came up for consideration in Commissioner  of  Central  Excise  v.
Wockhardt  Life  Sciences  Limited[3].   In  that  case,  the  Court   again
emphasized 'common parlance test' or the 'commercial usage test' as the  mot
common test for determining the classification in such cases.  After  taking
note of number of earlier decisions, this aspect was highlighted as under:
“33.  There is no fixed test for  classification  of  a  taxable  commodity.
This  is  probably  the  reason  why  the  “common  parlance  test”  or  the
“commercial usage test” are the most common (see A. Nagaraju Bros. v.  State
of A.P., (1994) Supp 3 SCC 122).  Whether a  particular  article  will  fall
within a particular tariff heading or not has to be decided on the basis  of
the tangible material or evidence  to  determine  how  such  an  article  is
understood in “common parlance”  or  in  “commercial  world”  or  in  “trade
circle” or in its popular sense meaning.  It is they who are concerned  with
it and it is the sense in which they  understand  it  that  constitutes  the
definitive index of the legislative intention, when the statute was  enacted
(see Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan, (1980)  4
SCC 71).

34.  One of the essential factors for determining whether  a  product  falls
within Chapter 30  or  not  is  whether  the  product  is  understood  as  a
pharmaceutical product in common  parlance  (see  CCE  v.  Shree  Baidyanath
Ayurved Bhavan Ltd., (2009) 12 SCC 419, and CCE v. Ishaan Research  Lab  (P)
Ltd., (2008) 13 SCC 349).  Further the quantity  of  medicament  used  in  a
particular product will also not be a relevant factor  for,  normally,   the
extent of use of medicinal ingredients is very low because a larger use  may
be harmful for the human body. [Puma  Ayurvedic  Herbal  (P)  Ltd.  v.  CCE,
(2006) 3 SCC 266, State of Goa v. Colfax Laboratories  Ltd.,  (2004)  9  SCC
83, and B.P.L. Pharmaceuticals Ltd. v. CCE, 1995 Supp (3) SCC 1].

35.   However,  there  cannot  be  a  static  parameter  for   the   correct
classification of a commodity.  This Court in Indian Aluminium  Cables  Ltd.
v. Union of India, (1985) 3 SCC 284, has culled out this  principle  in  the
following words: (SCC p. 291, para 13):

“13.  To sum up the true position, the process of manufacture of  a  product
and the end use to which it is put, cannot necessarily be  determinative  of
the classification of that product under a fiscal schedule like the  Central
Excise Tariff.  What is more important is whether the broad  description  of
the article fits in with the expression used in the Tariff.”

36.  Moreover, the functional utility and predominant or  primary  usage  of
the commodity which is being classified must be taken  into  account,  apart
from the understanding in common parlance. [See O.K. Play  (India)  Ltd.  v.
CCE, (2005) 2 SCC 460, Alpine Industries v. CCE, (2003) 3 SCC  111,  Sujanil
Chemo Industries v. CCE & Customs, (2005) 4 SCC 189,  ICPA  Health  Products
(P) Ltd. v. CCE, (2004) 4 SCC 481, Puma Ayurvedic Herbal, (2006) 3 SCC  266,
CCE v. Ishaan Research Lab (P) Ltd., (2008) 13  SCC  349,  and  CCE  v.  Uni
Products India Ltd., (2009) 9 SCC 295].

37.  A commodity cannot be classified in a residuary entry, in the  presence
of a specific entry, even if such specific entry requires the product to  be
understood in the technical sense (see Akbar Badrudin  Giwani  v.  Collector
of Customs, (1990) 2 SCC 203 and Commnr. Of Customs v. G.C. Jain, (2011)  12
SCC 713).  A residuary entry can be taken refuge of only in the  absence  of
a specific entry; that is to say, the latter will always  prevail  over  the
former [see CCE v. Jayant  Oil  Mills  (P)  Ltd.,  (1989)  3  SCC  343,  HPL
Chemicals Ltd. v. CCE, (2006) 5 SCC 208,  Western  India  Plywoods  Ltd.  v.
Collector of Customs, (2005) 12 SCC 731, and CCE  v.  Carrier  Aircon  Ltd.,
(2006) 5 SCC 596].

38.  In CCE v. Carrier Aircon Ltd., (2006) 5 SCC 596, this Court held:  (SCC
p. 601, para 14):

“14...There  are  a  number  of  factors  which  have  to  be   taken   into
consideration for determining the classification  of  a  product.   For  the
purposes of classification, the relevant factors inter  alia  are  statutory
fiscal entry, the basic character, function and use of the  goods.   When  a
commodity falls within a tariff entry by virtue of the purpose for which  it
is put to (sic produced), the end use  to  which  the  product  is  put  to,
cannot determine the classification of that product.”

39.  In our view, as we have  already  stated,  the  combined  factors  that
require to be taken note of for the purpose of  the  classification  of  the
goods are the composition, the product literature, the label, the  character
of the product and the user to which  the  product  is  put.   However,  the
miniscule quantity of the prophylactic ingredient is not a relevant  factor.
 In the instant case, it is  not  in  dispute  that  this  is  used  by  the
surgeons for the purpose of cleaning or degerming their hands and  scrubbing
the surface of the skin of the  patient  before  that  portion  is  operated
upon.  The purpose is to prevent the infection or disease.   Therefore,  the
product in question can be safely classified as a “medicament”  which  would
fall under Chapter Sub-Heading 3003 which is a specific entry and not  under
Chapter Sub-Heading 3402.90 which is a residuary entry.”

It is required to be noted that in para 36  quoted  above,  the  Court  also
laid importance to the functional utility and predominant or  primary  usage
of the commodity that is to be taken  into  account  while  classifying  the
product.  Another important aspect which needs  to  be  noted  is  that  the
combined effect of the aforesaid factors is to be taken into  consideration,
which would include composition, the  product  literature,  the  label,  the
character of the product and the user to which the product is put.   It  was
also clarified that miniscule quantity of  the  prophylactic  ingredient  is
not a relevant factor.

Discussion on this aspect was again revisited in the  case  of  Commissioner
of Central Excise, Mumbai IV v.  Ciens  Laboratories,  Mumbai[4].   In  that
case, a moisturising cream sold under the brand  name  'Moisturex'  was  the
product and it was to be determined as to whether it  was  used  simply  for
care of the skin or was intended for treating or curing dry skin  complaints
like  fissure  feet,  dry  scaly  skin  conditions,  ichthyosis  etc.   and,
therefore, was a medicament.  The argument of the Revenue  that  this  cream
was used merely for  softening  the  skin  was  rejected  in  the  following
manner:
“15.  The contention that “Moisturex”  is  a  moisturising  cream  used  for
softening the skin cannot be appreciated.  As  we  have  already  discussed,
the use of the cream is not for the care of the skin.  “Moisturex”  is  also
not primarily intended to protect the skin from sun, tan  or  dryness,  etc.
On the other hand, it is intended  for  treating  or  curing  the  dry  skin
conditions of the human skin and  for  a  few  other  skin  complaints  like
fissure feet, dry scaly skin  conditions,  ichthyosis,  etc.   The  argument
advanced on behalf of the Central Excise that use of urea or lactic acid  or
propylene glycon, etc. is only  as  subsidiary  pharmaceutical  constituents
and, hence, they cannot be held  out  as  having  curative,  therapeutic  or
prophylactic value, cannot also be appreciated.  It is the presence  of  the
ingredients of the pharmaceutical constituents which  makes  the  difference
and not the percentage of the ingredients as held by this Court in  Meghdoot
Gramodyog Sewa Sansthan v. CCE, (2005) 4 SCC 15...”

Main feature which needs to be taken note of from the  aforesaid  discussion
is that small percentage of the ingredients of  pharmaceutical  constituents
would  not  be  a  reason  by  itself  to   conclude   that   pharmaceutical
constituents are subsidiary in nature.  On the  other  hand,  what  is  more
relevant is the purpose for which the product is  used,  namely,  functional
test.  On that basis, the product in that case was  treated  as  medicament.
What is important is that the Court, in the process, laid down  the  guiding
principles  which  are  to  be  kept   in   mind   while   determining   the
classification.  These principles are formulated in the following manner:
“22.   Thus,  the  following  guiding  principles  emerge  from  the   above
discussion:

22.1.  Firstly, when a  product  contains  pharmaceutical  ingredients  that
have therapeutic or prophylactic or curative properties, the  proportion  of
such ingredients is not invariably decisive.  What is of importance  is  the
curative  attributes  of  such  ingredients  that  render  the   product   a
medicament and not a cosmetic.


22.2.  Secondly, though a product  is  sold  without  a  prescription  of  a
medical practitioner, it does not lead to the immediate conclusion that  all
products that are sold over/across the counter  are  cosmetics.   There  are
several products that are sold over the counter and are yet, medicaments.

22.3.   Thirdly,  prior  to  adjudicating  upon  whether  a  product  is   a
medicament or not, the courts have to see what the people who  actually  use
the product understand the product to be.  If a product's  primary  function
is “care” and not “cure”, it is not a  medicament.   Cosmetic  products  are
used in enhancing or improving a  person's  appearance  or  beauty,  whereas
medicinal products are used to treat or  cure  some  medical  condition.   A
product that is used mainly in curing or treating ailments or  diseases  and
contains curative ingredients even in small quantities, is to be branded  as
a medicament.”

After straitening the  position  in  law,  we  now  proceed  to  apply  this
principles to the present case.

As pointed out above, the product in question, Vaseline Intensive Care  Heel
Guard, is marketed as a solution for cracked heels and it  is  claimed  that
this  solution  is  specially  developed  by  the  scientists  at   Vaseline
Research.  The composition of this  product  includes  salicylic  acid  I.P.
1.5% w/w. lactic acid 8.0% w/w.  Triclosan  0.1%  w/w.  Cream  base  –  q.s.
Salicylic acid is described as keratolytic substance  having  bacteriostalic
and fungicidal properties used in the treatment of fungus infection  of  the
skin.  The  Tribunal,  while  deciding  that  the  aforesaid  product  is  a
medicament, pointed out that the  product  was  formulated  and  essentially
used for treatment of 'cracked heels', protection  from  further  cracks  in
the human heels  due  to  extreme  climatic  conditions  and  low  humidity,
constant exposure of feet to water and due  to  absence  of  shoe  or  other
protection while walking.  It also found that this product was  manufactured
under a drug  licence  as  drug  authorities  had  treated  the  same  as  a
medicament.  The Tribunal also found that the  usage  of  this  product  was
related  to  the  effect  of  therapeutic   or   mitigating   substance   of
prophylactic substances  added.   Thus,  the  effect  of  mitigation  of  an
external condition is primary effect and the effect of  smoothing  the  skin
was secondary  in  nature  and,  therefore,  it  was  to  be  treated  as  a
medicament and classified under Chapter 30.

Interestingly, all the aforesaid features of the  product  are  accepted  by
the Department.  However, only on the ground that salicylic  acid  contained
in the product is marginal, the Department took  the  view  that  it  was  a
subsidiary substance.  Having regard  to  the  exposition  of  law  narrated
above, this was clearly an erroneous approach on the part of the Revenue  as
percentage of the said substance is immaterial to label it as subsidiary.


Another more important factor which needs to be  stated  at  this  stage  is
that though the burden was on the Department, it did not lead  any  evidence
or produce any material to discharge  this  onus.  It  simply  went  by  the
pamphlet of the product, that too selectively picking up that portion  where
the product was described as good for care of the  skin  as  well,  ignoring
the  fact  that  the  same  very  literature  gives  more  emphasis  to  the
therapeutic value of the product.  On  the  other  hand,  the  assessee  had
filed various affidavits of the dealers as well as consumers in  support  of
its plea that the product was essentially a medicament, which  material  was
blissfully ignored by the Department.

From the aforesaid, we conclude that the decision of  the  Tribunal  holding
the product in question to  be  a  medicament  and,  therefore,  covered  by
Chapter Heading 3003.10 is perfectly justified and does  not  call  for  any
interference.

The civil appeal is, accordingly, dismissed with no order as to costs.
                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)
NEW DELHI;
AUGUST 25, 2015

ITEM NO.1A               COURT NO.13               SECTION III
(FOR JUDGMENT)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  1941/2006

C.C.E., CHENNAI                                    Appellant(s)

                                VERSUS

HINDUSTAN LEVER LTD.                               Respondent(s)



Date : 25/08/2015 This appeal was called on for pronouncement of
   Judgment today.



For Appellant(s)     Mr. B. Krishna Prasad,Adv.


For Respondent(s)    Mr. Rajan Narain,Adv.


      Hon'ble Mr. Justice A.K.Sikri pronounced the  Judgment  of  the  Bench
comprising His Lordship and Hon'ble Mr. Justice Rohinton Fali Nariman.
      The  appeal  is  dismissed  in  terms  of  the  signed  non-reportable
judgment.

      Pending application(s), if any, stand disposed of.

      We have pronounced the judgment today whereby  dismissing  the  appeal
of the Revenue. In the consequence,  if  any,  amount  is  refunded  to  the
respondent, the same shall be done in accordance with law.


      (Ashwani Thakur)                         (Renu Diwan)
       COURT MASTER                                 COURT MASTER

           (Signed non-reportable judgment is placed on the file)

                           -----------------------
                                     [1]

      (1995) Supp 3 SCC 1
[2]   2004 (167) ELT 374 (SC)
[3]   (2012) 5 SCC 585
[4]   (2013) 14 SCC 133

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.