ORDER
V.K. Agrawal, Member (T)
1. In this appeal, filed by the Commissioner, Central Excise, the issue involved is whether the product ‘Zulamia’ manufactured by M/s. Hamdard (Wakf) Laboratories is classifiable under sub-heading 3003.39 of the Schedule to the Central Excise Tariff Act as confirmed by the Commissioner (Appeals) in the impugned Order or under sub-heading No. 3305.99 as claimed by the Department.
2. Shri V. Valte, learned SDR, submitted that Note 1(d) to Chapter 30 specifically excludes preparations of Chapter 33 of the Tariff even if they have therapeutic or prophylactic properties; that further Note 2 to Chapter 33 of the Tariff provides that Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or not mixed, suitable for use as goods of these heading and put up in packing with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearing 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. Learned SDR, further, submitted that the impugned product is a preparation for use on hair and as such it is classifiable under Heading 33.05 of the Tariff; that the Commissioner (Appeals) in the impugned Order has not discussed the product as being medicament as he has not supported his conclusion with the help of technical literature throwing light on the use of the impugned product as medicament or any other literature to prove that Zulamla is a medicament.
3. Opposing the appeal, Shri Harishankar, learned Advocate, submitted that Zulamla is an ayurvedic medicament having its ingredient mentioned in the Indian Materia Medica, an authoritative book on Ayurved/Unani Siddha/Tibbia Medicines; that the impugned product is used to remove dandruff, itching sensations and falling of hair, keep the scalp clean and healthy, and nourish the hair follicles to provide natural growth; that the Asstt. Drug Controller after conducting the test and clinical trial, issued a certificate certifying Zulamla as an Ayurvedic drug to the Respondents permitting them to manufacture under licence. He also relied upon the decision of the Tribunal in the case of Naturence Research Lab. (P) Ltd. v. CCE, Delhi-II – 2003 (154) E.L.T. 672 (Tri.) wherein the product namely Basil ‘N’ Neem used on scalp and hair to control dandruff and hair fall has been classified as Ayurvedic medicament under Heading 30.03. In reply the learned SDR submitted that the product in question is nothing but a preparation for use on hair as it is used to provide natural growth to the hair and it is to be used at least thrice a week which goes to show that it is not a medicine.
4. We have considered the submissions of both the sides. We observe that the Asstt. Commissioner in the Adjudication Order No. 60/98, dated 13-10-98 has given his clear finding to the effect that all the ingredients used in the manufacture of Zulamla are having the medicinal properties and have composite effect for curing various ailments of scalp like itching sensation and removing dandruff. The Asstt. Commissioner, therefore, came to the conclusion that the impugned product is not of cosmetic nature and is a medicament. The Commissioner (Appeals), after going through the definition and Chapter Notes of both the Chapters 30 & 33 has held that Zulamla is clearly classifiable as medicament as it possess therapeutic values and it is used as medicine only. The Revenue in its appeal has not rebutted the findings given by both the lower authorities except merely reproducing the Note l(d) to Chapter 30 and Note 2 to Chapter 33 and contending that the Commissioner (Appeals) has not supported his conclusion with the help of any technical literature. The fact remains that there is no rebuttal by the Revenue that all the ingredients used in the manufacture of Zulamla are mentioned in the authoritative text book. It has been held by the Larger Bench of the Tribunal in the case of Himtaj Ayurvedic Udyog Kendra v. CCE, Allahabad [2002 (139) E.L.T. 610 (Tri. – LB) = 2002 (48) RLT 264] that the product having medicament exclusively mentioned in the authoritative books but manufactured in accordance with the formulation of the manufacturer will be ayurvedic medicament; that this decision of the Larger Bench of the Tribunal has been confirmed by the Supreme Court in the case of CCE v. Himtaj Udyog Kendra – 2003 (154) E.L.T. 323 (S.C.). Further, it has also not been challenged by the Revenue that the product is not used for removal of dandruff. The Tribunal in the case of Naturence Research Laboratories has classified the Basil ‘N’ Neem under Heading 30.03 as it was used on scalp and hair to control dandruff and hair fall following the decision of the Supreme Court in the case of BPL Pharmaceutical Ltd. v. CCE – 1995 (77) E.L.T. 485 (S.C.). In view of this we do not find any merit in the appeal filed by the Revenue which is rejected.