{"id":108651,"date":"2009-04-13T00:00:00","date_gmt":"2009-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-baidynath-ayurwed-bhawan-ltd-on-13-april-2009"},"modified":"2015-06-24T18:32:03","modified_gmt":"2015-06-24T13:02:03","slug":"commissioner-of-central-excise-vs-baidynath-ayurwed-bhawan-ltd-on-13-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-baidynath-ayurwed-bhawan-ltd-on-13-april-2009","title":{"rendered":"Commissioner Of Central Excise, … vs Baidynath Ayurwed Bhawan Ltd on 13 April, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Central Excise, … vs Baidynath Ayurwed Bhawan Ltd on 13 April, 2009<\/div>\n
Author: R Lodha<\/div>\n
Bench: D.K. Jain, R.M. Lodha<\/div>\n
                                                            REPORTABLE\n\n          IN THE SUPREME COURT OF INDIA\n            CIVIL APPELALTE JURISDICTION\n\n               CIVIL APPEAL NO. 4048\/2001\n\n\nCommissioner of Central Excise, Nagpur      ..       Appellant\n\n                            Vs.\n\nShree Baidyanath Ayurved Bhawan Ltd.        ..     Respondent\n\n                           WITH\n\n              Civil Appeal Nos.2396-2397\/2003\n\nM\/s.Shree Baidyanath Ayurved Bhawan Ltd. ..\nAppellant\n\n                               Vs.\n\nCommissioner of Central Excise, Patna             ..Respondent\n\n                           WITH\n\n              Civil Appeal Nos.9739-9746\/2003\n\nM\/s. Shree Baidyanath Ayurved Bhawan,Ltd.           ..\nAppellant\n\n                               Vs.\n\nCommissioner of Central Excise, Patna             ..Respondent\n\n                           WITH\n\n               CIVIL APPEAL NO.6691\/2004\n\nM\/s. Shree Baidyanath Ayurved Bhawan Ltd.\nSathariya, District - Jaunpur                        ..\nAppellant\n                            Vs.\nCommissioner of Central Excise, Allahabad        ..Respondent\n\n                                AND\n\n          Civil Appeal No .1521\/2009(D.No.20489\/06)\n\nCommissioner of Central Excise, Nagpur             ..Appellant\n\n           Vs.\n\nM\/s. Baidyanath Ayurvedic Bhawan Ltd.            ..Respondent\n\n\n                      JUDGEMENT\n<\/pre>\n
R.M. LODHA, J.\n<\/p>\n
           The only issue in this batch of       thirteen    civil<\/p>\n
appeals is in respect of    classification of “Dant Manjan Lal”<\/p>\n
(DML) manufactured by M\/s. Baidyanath        Ayurved Bhawan<\/p>\n
Limited (`Baidyanath’, for short). While Baidyanath contends<\/p>\n
that the product DML is a medicament under Chapter Sub-<\/p>\n
heading 3003.31 of the Central Excise Tariff Act, 1985, the<\/p>\n
stand of the Department is that the said product             is a<\/p>\n
cosmetic\/toiletry preparation\/tooth powder classifiable     under<\/p>\n
Chapter Heading 33.06.\n<\/p>\n
                                                               2<\/span>\n<\/p>\n
           2.                 The true classification of the product DML<\/p>\n
                       has been subject of fluctuating opinion among the<\/p>\n
                       benches of      the    Customs, Excise and Gold<\/p>\n
                       (Control) Appellate Tribunal (for short, `Tribunal’).<\/p>\n
                       West Regional Bench of the Tribunal decided the<\/p>\n
                       classification in favour of Baidyanath and held that<\/p>\n
                       DML is     classifiable under Chapter Sub-heading<\/p>\n
                       3003.31. The similar view has been taken by East<\/p>\n
                       Regional Bench of the Tribunal.         However, the<\/p>\n
                       larger bench of the Tribunal to which the issue of<\/p>\n
                       classification of DML was referred, has held that<\/p>\n
                       DML    is classifiable under Chapter Sub-heading<\/p>\n
                       3306.10. It is for this reason that the Department<\/p>\n
                       as well as    Baidyanath have preferred      separate<\/p>\n
                       appeals.\n<\/p>\n
           3.          The litigative journey with regard to classification of<\/p>\n
           this product has reached this Court           earlier   in Shree<\/p>\n
           Baidyanath Ayurved Bhawan Ltd. Vs. Collector of Central<\/p>\n
           Excise, Nagpur1. We shall refer to that decision a little later.<\/p>\n
1<\/span>
\n    (1996) 9 SCC 402<\/p>\n
                                                                            3<\/span>
\nFirst we shall advert to the sequence of facts leading to the<\/p>\n
present controversy.\n<\/p>\n
4.           Baidyanath   is    engaged    in   the   activity   of<\/p>\n
manufacturing medicines        adopting   Indian systems.    They<\/p>\n
have their    works situate at Calcutta (now Kolkata), Naini,<\/p>\n
Patna, Nagpur and Jhansi.          One of the products being<\/p>\n
manufactured by Baidyanath is DML. The product is a powder<\/p>\n
compounded with Geru, Peepall, Sonth, Kali Mirch, Tambakuh,<\/p>\n
Clove Oil, Camphor, Pepperment, Babul Chhal, Tumber Beej.<\/p>\n
Baidyanath claims that DML is manufactured in accordance<\/p>\n
with the formulae given in Ayurved Sar Sangraha (an<\/p>\n
authoritative text on the Ayurved system of medicine) by using<\/p>\n
the ingredients mentioned therein. Ayurved Sar Sangraha is<\/p>\n
notified under the First Schedule of the Drugs and Cosmetics<\/p>\n
Act, 1940 ( for short `Act, 1940′). It is also the case of the<\/p>\n
Baidyanath that DML is sold in the name which is specified<\/p>\n
in Ayurved Sar Sangraha.\n<\/p>\n
5.           Prior to 1975, the product DML was considered to<\/p>\n
be classifiable under Tariff Item 14E of the First Schedule of<\/p>\n
the Central Excise and Salt Act,1944 ( for short `Act, 1944′)<\/p>\n
which item covered medicines.        Accordingly, DML was not<\/p>\n
                                                                 4<\/span>
\nsubject to levy of excise duty and exempted therefrom. On<\/p>\n
March 1, 1975, Residuary Item 68 was incorporated in the<\/p>\n
Act, 1944 wherein all items not elsewhere specified in the<\/p>\n
tariff were liable to be classified.    Baidyanath   filed a fresh<\/p>\n
classification list and commenced paying excise duty as was<\/p>\n
leviable under Residuary Item 68 of the Act, 1944.<\/p>\n
6.         On March 1, 1978, the Central Government issued<\/p>\n
an Exemption Notification bearing No. 62\/78-CE whereby<\/p>\n
exemption was extended to              “…..all drugs, medicines,<\/p>\n
pharmaceuticals and drug         intermediates not elsewhere<\/p>\n
specified.” Baidyanath claimed the benefit extended by the<\/p>\n
Central Government under the said Notification and stopped<\/p>\n
paying duty on the product DML while filing fresh classification<\/p>\n
list.\n<\/p>\n
7.         In the month of March 1980, the Department<\/p>\n
expressed doubts about the classification of DML and issued<\/p>\n
notices to Baidyanath requiring them to show cause as to why<\/p>\n
DML be not subjected to tariff rate without treating it as an<\/p>\n
Ayurvedic Medicine and without extending the benefit available<\/p>\n
under the Notification No.62\/78-CE.\n<\/p>\n
                                                                5<\/span>\n<\/p>\n
8.          Baidyanath resisted various show cause notices on<\/p>\n
diverse grounds, namely; that DML is an Ayurvedic Medicine,<\/p>\n
that it manufactures the same     under a drug licence; that all<\/p>\n
the ingredients of DML are mentioned in the authoritative book<\/p>\n
of Ayurved System of Medicine; and that the product is an<\/p>\n
Ayurvedic Medicine in the trade and common parlance.        The<\/p>\n
Baidyanath, thus, claimed that it was eligible for the benefit<\/p>\n
extended under the Notification No.62\/78-CE.<\/p>\n
9.          The view of adjudicating authorities who issued<\/p>\n
show cause notices was not uniform. Their opinion has been<\/p>\n
varied. While some of the adjudicating authorities held that<\/p>\n
DML was an Ayurvedic Medicine; the others took the view that<\/p>\n
it was not so.   All these matters ultimately found their way to<\/p>\n
the Tribunal.    On July 14, 1985, the Tribunal    delivered its<\/p>\n
judgment in the matter and held that         in common trade<\/p>\n
parlance,   DML is neither treated nor understood as an<\/p>\n
Ayurvedic Medicine and hence could not be classified as such.<\/p>\n
The Tribunal, thus, held that the product DML was not eligible<\/p>\n
for the benefit extended under Notification No.62\/78-CE as it<\/p>\n
was not     covered by the category of goods mentioned at<\/p>\n
Sr.No.19 of the schedule to the said notification. Pertinently,<\/p>\n
                                                              6<\/span>
\nthe goods mentioned in the said category included `drugs,<\/p>\n
medicines, pharmaceuticals and drug            intermediates’ not<\/p>\n
elsewhere defined.\n<\/p>\n
10.          The aforesaid     order of the Tribunal came to be<\/p>\n
challenged at the instance of Baidyanath before this Court in<\/p>\n
various appeals.      The appeals    were admitted   and    finally<\/p>\n
disposed of on March 30, 1995 (referred to hereinafter as<\/p>\n
Baidyanath I1) . This Court held that the product DML would<\/p>\n
have to be      classified   on the basis of the common trade<\/p>\n
parlance test and applying that test, the Tribunal was correct<\/p>\n
in    its finding   that DML   was not known as an Ayurvedic<\/p>\n
Medicine.      The finding of the Tribunal that DML was toilet<\/p>\n
requisite    was upheld.     Be it noticed   here that during the<\/p>\n
pendency of the appeals before this Court,        Central Excise<\/p>\n
Tariff Act, 1985 (for short, `New Tariff Act’ ) was enacted which<\/p>\n
replaced the Schedule to the Act, 1944. Chapter 30 of the<\/p>\n
New tariff Act deals with pharmaceutical products.         Chapter<\/p>\n
Sub-heading 3003.30 provided for no excise duty leviable on<\/p>\n
medicaments, including those        used in    Ayurvedic, Unani,<\/p>\n
Siddha, Homeopathic or Bio-chemic System. On August 28,<\/p>\n
1987, the First Schedule to the Drugs and Cosmetic Act, 1940<\/p>\n
                                                                7<\/span>
\nwas amended and the book `Ayurved Sar Sangraha’ was<\/p>\n
included therein.\n<\/p>\n
11.          On September 25, 1991, the Central Board of<\/p>\n
Excise and Customs (for short, `the Board’) issued a circular<\/p>\n
in respect of DML and advised          its classification as   an<\/p>\n
Ayurvedic Medicine. It is Baidyanath’s case that in pursuance<\/p>\n
of the circular dated September 25,1991, the concerned<\/p>\n
Commissioner of Central Excise issued trade notices directing<\/p>\n
the field formations to classify DML as an Ayurvedic Medicine.<\/p>\n
The assessee filed       classification list in its various units<\/p>\n
declaring DML       as an Ayurvedic   Medicine and claimed the<\/p>\n
exemption benefit extending thereto.          Baidyanath, thus,<\/p>\n
stopped paying excise duty on DML.\n<\/p>\n
12.          During 1996-97, Chapter 30 of the New Tariff came<\/p>\n
to be amended. Under Chapter Heading 30.03, Sub-heading<\/p>\n
3003.31 was inserted      which provided     levy of   nil duty in<\/p>\n
respect of     the medicaments manufactured exclusively         in<\/p>\n
accordance with the formulae described       in the authoritative<\/p>\n
books in the First Schedule to the Drugs and Cosmetics Act,<\/p>\n
1940.\n<\/p>\n
                                                                8<\/span>\n<\/p>\n
13.          On October 31, 1996, the     Board     withdrew the<\/p>\n
circular   dated September 25, 1991 and advised its field<\/p>\n
formations to classify the product DML in accordance with the<\/p>\n
order passed by this Court in Baidyanath I1. The assessee<\/p>\n
approached the Board by way of representation putting forth<\/p>\n
the plea that after the introduction of New Tariff Act and the<\/p>\n
amendments made in 1996, there is a specific definition of<\/p>\n
Ayurvedic Medicine and hence classification of its product DML<\/p>\n
should be done on the basis of that definition alone and not the<\/p>\n
common trade parlance test. The Board thereafter on May 27,<\/p>\n
1997, sent     communication to the Commissioner of Central<\/p>\n
Excise, Nagpur, concerning the classification of DML to decide<\/p>\n
the classification of the product in the light of opinion of Drug<\/p>\n
Controller of India as well    as instructions contained in the<\/p>\n
circulars dated March 29, 1994 and April 3, 1996.<\/p>\n
14.          On September 10, 1997, the Board withdrew its<\/p>\n
circular dated May 27, 1997       and directed classification of<\/p>\n
DML in terms of judgment of this Court in Baidyanath I1 with<\/p>\n
regard to this very product.\n<\/p>\n
15.          In pursuance of the circular issued by the Board on<\/p>\n
October 31, 1996, several notices came to be issued to<\/p>\n
                                                               9<\/span>
\nBaidyanath by various Excise Authorities at Patna; Allahabad<\/p>\n
(Naini); Jhansi and Nagpur asking them to show cause as to<\/p>\n
why DML should not be classified as a toiletry under Chapter<\/p>\n
33 of the New Tariff Act and duty be demanded accordingly.<\/p>\n
The show      cause   notices were resisted    and contested by<\/p>\n
Baidyanath and the matter reached the Tribunal. As stated<\/p>\n
above, West      Regional Bench and East Regional Bench       of<\/p>\n
the Tribunal decided the classification in favour of Baidyanath.<\/p>\n
Thereafter, the classifiability issue    of DML came     up for<\/p>\n
consideration before the Principal Bench of the Tribunal at New<\/p>\n
Delhi and the Bench doubted the correctness of the decisions<\/p>\n
of West Regional Bench and East Regional Bench and referred<\/p>\n
the issue to the Larger Bench.          The Larger Bench of the<\/p>\n
Tribunal decided the reference and held that the product DML<\/p>\n
was classifiable under Chapter Heading 33.06        of the New<\/p>\n
Tariff Act.\n<\/p>\n
16.           The factual position that the product DML is<\/p>\n
manufactured by Baidyanath in accordance with the formulae<\/p>\n
mentioned in the book `Ayurved Sar Sangraha’ which is notified<\/p>\n
in the First Schedule appended to Drugs and Cosmetics Act,<\/p>\n
1940 and that the product is sold in the name which is specified<\/p>\n
                                                              1<\/span>
\n                                                              0<\/span>
\nin that book has not been seriously put in issue by the<\/p>\n
Department before us.\n<\/p>\n
17.        We heard Mr. C.A.Sundram, learned senior counsel<\/p>\n
for Baidyanath and Mr. K. Radhakrishnan, learned senior<\/p>\n
counsel for the Department at quite some length.<\/p>\n
18.        Mr. C.A.Sundram would contend: (i)             that the<\/p>\n
product DML falls under Chapter Sub-heading 3003.31 as it is<\/p>\n
a medicament because it           comprises   of two or      more<\/p>\n
constituents which have been mixed together for therapeutic<\/p>\n
and prophylactic   uses.     It   is manufactured   exclusively in<\/p>\n
accordance with the        formulae described in `Ayurved Sar<\/p>\n
Sangraha’ which is an authoritative text on the Ayurvedic<\/p>\n
System of treatment and is notified in the First Schedule to the<\/p>\n
Drugs and Cosmetics        Act, 1940.   Moreover, in accordance<\/p>\n
with the provisions of the Drugs and Cosmetics Act, 1940, the<\/p>\n
said product is manufactured by Baidyanath under           a drug<\/p>\n
licence issued by the concerned competent authority. Further,<\/p>\n
the product is sold under the name of `Dant Manjan Lal’ which<\/p>\n
is the name specified for the said product in       `Ayurved Sar<\/p>\n
Sangraha’, (ii) that the Government accepts that the product<\/p>\n
DML is a classical or pharma-copoeial Ayurvedic Medicine.<\/p>\n
                                                                1<\/span>
\n                                                                1<\/span>
\nDuring the parliamentary debates, the Finance Minister clearly<\/p>\n
stated that if the two conditions are met namely, the product<\/p>\n
is manufactured exclusively in accordance with the formulae<\/p>\n
described in the authoritative text on the Ayurvedic System of<\/p>\n
treatment and is notified in the First Schedule to the Drugs and<\/p>\n
Cosmetics Act, 1940 and the product is sold in the           name<\/p>\n
which is the name specified for the said product in the<\/p>\n
authoritative text, there is no duty on the product; (iii) that the<\/p>\n
New Tariff Act contains definition of Ayurvedic Medicines post-<\/p>\n
1996    and now there is clear distinction drawn between<\/p>\n
classical or    pharmacopoeial        Ayurvedic Medicines and<\/p>\n
patent and proprietary medicines. Once there is a definition<\/p>\n
provided in the Tariff Act, that definition alone shall prevail<\/p>\n
and common trade parlance test is not            applicable. The<\/p>\n
common trade parlance test is to be applied only in the<\/p>\n
absence of definition; (iv) that therapeutic and prophylactic<\/p>\n
uses of DML as pharmacopoeial Ayurvedic Medicine clearly<\/p>\n
stand established as the formulae has been in existence for<\/p>\n
the past several 100 years which is contained in the         book<\/p>\n
`Ayurved Sar Sangraha’ and the said book is notified in the<\/p>\n
First Schedule of the Drugs and Cosmetics Act, 1940 and the<\/p>\n
                                                                 1<\/span>
\n                                                                 2<\/span>
\n            product is accepted as a medicine under the Drugs Act; (v)<\/p>\n
            that entry in Chapter Sub-heading 3003.31 being more specific<\/p>\n
            entry, it must be preferred over general residuary entry of<\/p>\n
            3306.10.          By applying general rules of interpretation to the<\/p>\n
            Schedule and the New Tariff Act, a specific entry must prevail<\/p>\n
            over a general entry; (vi) that Note 1(d) of Chapter 30 does not<\/p>\n
            cover -“preparations of Chapter 33 even if               they have<\/p>\n
            therapeutic or prophylactic properties” and for a product to be<\/p>\n
            excluded by this Note 1(d), it must be a product covered in<\/p>\n
            Chapter 33 while DML is an Ayurvedic Medicine specifically<\/p>\n
            covered under Chapter 30; and (vii) that the product DML does<\/p>\n
            not qualify        Note 2 of Chapter 33 as this Court in the case of<\/p>\n
            BPL Pharmaceutical Limited vs. Collector of Central Excise,<\/p>\n
            Vadodra2,<\/a> has held that for a product to fall under this Entry, it<\/p>\n
            must: (i) be suitable for use as goods of Chapter Heading<\/p>\n
            33.06, (ii)        the packaging, with labels, literature and other<\/p>\n
            indications must indicate that it is for cosmetic or toilet use,<\/p>\n
            and (iii)        irrespective of whether they are held out   to have<\/p>\n
            subsidiary curative or prophylactic properties.<\/p>\n
2<\/span>
\n    1995 (77) ELT 500 (SC)<\/p>\n
                                                                              1<\/span>
\n                                                                              3<\/span>\n<\/p>\n
            19.               The learned senior counsel for Baidyanath relied<\/p>\n
            upon the judgment of this Court in the case of Collector of<\/p>\n
            Central Excise vs. Andhra Sugar Limited3<\/a> wherein the rule of<\/p>\n
            `contemporaneous exposito’ has been explained namely that<\/p>\n
            for construction of a          statute    the Legislative intent and<\/p>\n
            Executive instructions may be taken into account to determine<\/p>\n
            the scope           and intent of the entry        or statue    under<\/p>\n
            consideration.        He also relied upon decisions of this Court in<\/p>\n
            (1) Oswal Agro Mills Ltd. vs. Collector of Central Excise &<\/p>\n
            Ors.4<\/a> (2) Amrutanjan Ltd. vs. Collector of Central Excise5<\/a>; (3)<\/p>\n
            Commissioner          of   Central   Excise,   Calcutta   vs. Sharma<\/p>\n
            Chemcial Works6<\/a>; (4) Commissioner of Central Excise, Nagpur<\/p>\n
            vs. Vicco Laboratories7 and<\/a> (5) Meghdoot Gramodyog Sewa<\/p>\n
            Sansthan vs. Commissioner of Central Excise, Lucknow8.<\/p>\n
            20.               Mr. K. Radhakrishnan, learned senior counsel for<\/p>\n
            the Department contending contra,              by referring to Notes 1<\/p>\n
            (d) and 2 of Chapter 30 and Note 2 to Chapter 33 and Chapter<\/p>\n
            Heading 30.03 and 33.06, submitted that Chapter 30 excludes<\/p>\n
3<\/span>
\n     1989 Supp. (1) SCC 144
\n4<\/span>
\n     1993 (6) ELT 37 SC
\n5<\/span>
\n    1995 (77) ELT 500 SC
\n6<\/span>
\n     2003 (154) ELT 328
\n7<\/span>
\n     2005 (17) ELT 17 SC
\n8<\/span>
\n     2004 (174) ELT 14 SC<\/p>\n
                                                                                1<\/span>
\n                                                                                4<\/span>
\npreparations of Chapter 33 even if they have therapeutic or<\/p>\n
prophylactic properties. He would submit that the word used<\/p>\n
in Note 1(d) of Chapter 30 is `properties’ while the word used in<\/p>\n
Note 2 of Chapter 30 is `uses’. These two words, `properties’<\/p>\n
and `uses’ import different concepts.           Mr. K. Radhakrishnan<\/p>\n
would submit       that the      restrictive definition of the word<\/p>\n
`medicaments’ in Note 2 of Chapter 30 is for the purposes of<\/p>\n
Heading    30.03.      Chapter        Heading    30.03     deals     with<\/p>\n
medicaments        including     veterinary      medicaments         and<\/p>\n
medicaments      for     therapeutic      and     prophylactic      use.<\/p>\n
Medicaments cover the entire Heading 30.03 including every<\/p>\n
Sub-heading.    Thus,      for    a    product    to     qualify   under<\/p>\n
`medicament’, `use’ and `not properties’ of the product must be<\/p>\n
therapeutic or prophylactic.      The common parlance test, the<\/p>\n
learned senior counsel would submit, is inbuilt in the definition<\/p>\n
of `medicament’ in Note 2 of Chapter 30 as the emphasis is on<\/p>\n
the word `uses’.       In the submission of the learned            senior<\/p>\n
counsel for the Department, common parlance test is well<\/p>\n
recognized as one of the twin tests which should be applied to<\/p>\n
classify a product as medicament or cosmetic even post 1996.<\/p>\n
Without satisfying the common parlance test, the classification<\/p>\n
                                                                       1<\/span>
\n                                                                       5<\/span>
\ncannot be applied. Mr. K. adhakrishnan submitted that as to<\/p>\n
whether the product described against the Sub-heading<\/p>\n
3003.31 is a medicament or not can be ascertained only after<\/p>\n
resorting to Note 2 of Chapter 30 and the common parlance<\/p>\n
test inbuilt in it. Rule 1 of the Rules for the interpretation of the<\/p>\n
Schedule to the New Tariff Act mandates that classification<\/p>\n
shall be determined according to the terms of the Heading<\/p>\n
and any relative Section or Chapter Notes, hence Chapter Note<\/p>\n
2 dealing with medicaments cannot be by-passed.<\/p>\n
21.         The learned senior counsel for the Department<\/p>\n
would urge that the classification cannot be finalized by looking<\/p>\n
at the description of the goods provided against Sub-heading<\/p>\n
3003.31; the description of goods provided against Sub-<\/p>\n
heading 3003.31, is not a definition of medicament. According<\/p>\n
to him, Sub-heading 3003.31 provides the process of<\/p>\n
manufacture of certain medicaments including those used in<\/p>\n
Ayurvedic and     sale    of the same.      He would submit that<\/p>\n
procedure for manufacture of a product is not a relevant test<\/p>\n
legally recognized for classification of the product.<\/p>\n
22.         Mr. K. Radhakrishnan, learned senior counsel<\/p>\n
would also submit that the definition       under Section 3(a) of<\/p>\n
                                                                  1<\/span>
\n                                                                  6<\/span>
\nDrugs and Cosmetics Act, 1940 does not relate to Ayurvedic<\/p>\n
Medicines alone and it is materially distinct from Sub-heading<\/p>\n
3003.31 of Chapter 30 as collocation of       words “sold under<\/p>\n
the name as specified in such book or pharmacopoeia” is<\/p>\n
conspicuously absent in Section 3(a).\n<\/p>\n
23.        The learned       senior counsel for the Department<\/p>\n
heavily relied upon a three Judge Bench decision of this Court<\/p>\n
in Baidyanath I1 wherein this Court held that the product DML<\/p>\n
is not an Ayurvedic Medicine. This Court approved common<\/p>\n
parlance test applied by the Tribunal. He would submit that<\/p>\n
the product is the very same product for which Baidyanath is<\/p>\n
agitating to get a classification under the heading medicament.<\/p>\n
The product has not undergone any change                  in their<\/p>\n
composition, character and use;        merely because there is<\/p>\n
some difference in the tariff entries, the character and use of<\/p>\n
the   product   will   not   change.   According    to    Mr.   K.<\/p>\n
Radhakrishnan, by inclusion of the book            `Ayurved Sar<\/p>\n
Sangraha’ in the first schedule of the Drugs and Cosmetics<\/p>\n
Act, 1940, the product DML could not be classified              as<\/p>\n
`medicament’. The senior counsel also submitted          that   the<\/p>\n
earlier decision of this Court relating to very same product<\/p>\n
                                                                 1<\/span>
\n                                                                 7<\/span>
\noperates as res judicata                 which is based on three legal<\/p>\n
maxims: (1) Nemo debet bis vexari pro una et eadem causa<\/p>\n
(2) Interest republicae ut sit finis litium                 and (3) Res judicata<\/p>\n
pro veritate occipitur. He, thus, submitted that the product DML<\/p>\n
is classifiable under Heading 33.06 being a tooth powder.<\/p>\n
24.          We deem it appropriate at this stage                            to set out<\/p>\n
relevant portions in the Tariff Items, Chapter Notes and the<\/p>\n
Rules for the interpretation               of the       Schedule            which have<\/p>\n
bearing for consideration before us.\n<\/p>\n
25.            Rules for interpretation of the Schedule as stated<\/p>\n
in New Tariff Act are as follows:\n<\/p>\n<\/p>\n
      “1. The titles of Sections and Chapter are provided for
\n      ease of reference only; for legal purposes, classification
\n      shall be determined according to the terms of the headings
\n      and any relative Section or Chapter Notes and, provided
\n      such headings or Notes do not otherwise require, according
\n      to the provisions hereinafter contained.<\/p>\n
      2.     (a) ………………………………………………..\n<\/p><\/blockquote>\n
             (b) …………………………… The classification of
\n      goods consisting of more than one material or substance
\n      shall be according to the principles contained in rule 3.\n<\/p><\/blockquote>\n
      3.     When an application of sub-rule(b) of rule 2 or for
\n      any other reason, goods are, prima facie, classifiable
\n      under two or more        headings, classification shall be
\n      effected as follows:<\/p><\/blockquote>\n
      (a) The heading which provides        the most     specific
\n          description shall be preferred to headings providing a
\n          more general description. However, when two or more<\/p>\n
                                                                                     1<\/span>
\n                                                                                     8<\/span>
\n     headings each refer to part only of the materials or
\n     substances contained in mixed or composite goods or to
\n     part only of the items in a set, those headings are to be
\n     regarded as equally specific in relation to those goods,
\n     even if one of them gives a more complete or precise
\n     description of the goods.\n<\/p>\n
(b)    Mixture, composite goods consisting of different
\nmaterials or made up of different components, and goods
\nput up in sets, which cannot be classified by reference to\n<\/p>\n
(a), shall be classified as if they consisted of the material or
\ncomponent which gives them their essential character,
\ninsofar as this criterion is applicable.\n<\/p>\n
(c)     When goods cannot be classified by reference to\n<\/p>\n
(a) or (b), they shall be classified under the heading which
\noccurs last in the numerical order among those which
\nequally merit consideration.\n<\/p>\n
4.    Goods which cannot be classified in accordance with
\nthe above rules shall be classified under the heading
\nappropriate to the goods to which they are most akin.<\/p>\n
5.     For legal purposes, the classification of goods in the
\nsub-headings of a heading shall be determined according
\nto the terms of those sub-headings and any related Chapter
\nNotes and, mutatis mutandis, to the above rules, on the
\nunderstanding that only sub-headings at the same level are
\ncomparable.       For the purposes of this rule, the relative
\nSection Notes also apply, unless the context otherwise
\nrequires.\n<\/p>\n
               GENERAL EXPLANATORY NOTES<\/p>\n
1.      Where in column (3) of this Schedule, the description
\nof an article or group of articles under a heading preceded
\nby “-” the said article or group of articles shall be taken to
\nbe a sub-classification of the article or group of articles
\ncovered by the said heading.              Where, however, the
\ndescription of an article or group of articles is preceded by
\n“- -“, the said article or group of articles shall be taken to be
\na sub-classification of the immediately                 preceding
\ndescription of article or group of articles which has “–“.<\/p>\n
2.      ……………………………………………………. ………..<\/p>\n
                                                                                    1<\/span>
\n                                                                                    9<\/span>\n<\/p>\n
26.         Chapter 30 to the extent, it is relevant for the present<\/p>\n
matter, is as follows:\n<\/p>\n
                          “CHAPTER 30
\n                    PHARMACEUTICAL PRODUCTS<\/p>\n
      NOTES<\/p>\n<\/blockquote>\n
      1.       This Chapter does not cover:\n<\/p><\/blockquote>\n
      (a)     .................\n      (b)     .................\n      (c)     .................\n      (d)     Preparations of Chapter 33 even if they have\n<\/pre>\n
              therapeutic or prophylactic properties;\n<\/p><\/blockquote>\n
       (e)    .................\n       (f)    .................\n       (g)    .................\n<\/pre>\n
       2.      For the purposes of the heading No.30.03,\n<\/p><\/blockquote>\n
   (i)     `Medicaments’ means goods (other than           foods or
\n           beverages such as dietetic, diabetic or fortified foods,
\n           tonic beverages) not falling within heading No.30.02 or
\n           30.04 which are either :\n<\/p><\/blockquote>\n
       (a) products comprising two or more constituents which
\n              have been mixed        or compounded together for
\n              therapeutic or prophylactic uses; or\n<\/p><\/blockquote>\n
       (b) unmixed products suitable for such uses.\n<\/p><\/blockquote>\n
       3.      …………..\n<\/p><\/blockquote>\n
       4.      …………..\n<\/p><\/blockquote>\n
       5.      …………..\n<\/p><\/blockquote>\n
       6.      …………..\n<\/p><\/blockquote>\n
27.         Relevant portions in Chapter 33 is thus:<\/p>\n
                              CHAPER 33<\/p>\n
      ESSENTIAL OILS RESINOIDS; PERFUMERY, COSMETIC
\n                 OR TOILET PREPARATIONS<\/p>\n
      NOTES\n<\/p><\/blockquote>\n
      1.  ………………………………………………….<\/p><\/blockquote>\n
      2.  Heading Nos. 33.03 to 33.08 apply, inter alia, to
\n          products, whether or not mixed (other than aqueous
\n          distillates and aqueous solutions of essential oils),<\/p>\n
                                                                       2<\/span>
\n                                                                       0<\/span>
\n                  suitable for use as goods of these headings and put
\n                  up in packings with labels, literature       of other
\n                  indications that they are for use as cosmetics or
\n                  toilet preparations or put up in a form clearly
\n                  specialized to such use and includes products
\n                  whether or          not they contain subsidiary
\n                  pharmaceutical or antiseptic constituents, or are
\n                  held out as having subsidiary curative or prophylactic
\n                  value.\n<\/p>\n
         3.       ………………\n<\/p>\n
         4.       ………………\n<\/p>\n
—————————————————————————————————\n<\/p>\n
Heading           Sub-              Description of goods                          Rate\nNo.               heading                                                         of\n                  No.                                                             duty\n(1)               (2)                        (3)                                  (4)\n33.06           3306.00                  Preparations for oral or dental                   15%\n                                Hygiene, including dentifrices\n                                (for example toothpaste and\n                                Tooth powder) and denture\n                                Fixative pastes and powders\"\n\n\n\n\n<\/pre>\n
28.               In 1996-97, Chapter 30 to New Tariff Act came to<\/p>\n
be amended. Chapter Sub-heading No.3003 now stands as<\/p>\n
under:\n<\/p>\n
         “MEDICAMENTS (INCLUDING VETERINARY
\n         MEDICAMENTS)<\/p>\n
         3003.10-Patent or proprietary medicaments, other than
\n               those medicaments which are exclusively Ayurvedic,
\n               Unani, Siddha, Homoeopathic or Bio-chemic<\/p>\n
         3003.20- Medicaments (other than patent or proprietary )
\n         other than those     medicaments which are exclusively
\n         Aurvedic, Unani, Siddha, Homoeopathic or Bio-chemic<\/p>\n<\/blockquote>\n
         -Medicaments, including those used in Ayurvedic, Unani,
\n         Siddha, Homoeopathic or Bio-chemic systems<\/p>\n
                                                                                                2<\/span>
\n                                                                                                1<\/span>
\n      3003.31 – – Medicaments (including veterinary
\n      Medicaments) used       in Ayurvedic, Unani, Siddha or
\n      Homoeopathic     Systems,    manufactured exclusively in
\n      accordance with the formulae described in the authoritative
\n      books specified in the First Schedule to the Drugs and
\n      Cosmetics Act, 1940 (23 of 1940) or …………….. and sold
\n      under the name as specified in such book or pharma-
\n      copoeia;”\n<\/p><\/blockquote>\n
29.          Baidyanath’s product DML has not been treated<\/p>\n
as Ayurvedic Medicine to qualify for exemption from payment<\/p>\n
of excise duty under Notification No.62\/78-CE dated March, 1,<\/p>\n
1978 by this Court. This Court approved common parlance<\/p>\n
test applied by the Tribunal that DML could not be described as<\/p>\n
a medicinal preparation and that it could rightly be described<\/p>\n
as a toilet preparation. In Baidyanath I1, it was held thus:<\/p>\n
             “The ingredients for the product in question are
\n      stated to be Geru (red earth) to the extent of 70% which is
\n      sated to have cooling quality but the Tribunal noticed that it
\n      is largely used as a filler or colouring agent and is not
\n      described as a medicine in common parlance. After going
\n      through the various texts, the definition of `drug’ under the
\n      Drugs and Cosmetics Act, 1940 and ayurvedic books as
\n      well as opinion of experts in this behalf, the Tribunal
\n      ultimately came to the conclusion that the product in
\n      question could not be described as a medicinal preparation
\n      and accordingly rejected the claim of the appellant.\n<\/p><\/blockquote>\n
              We have heard the learned counsel at some length.<\/p><\/blockquote>\n
      He also invited our attention to the provisions of the Drugs
\n      and Cosmetics Act, 1940, the opinion of the experts, the
\n      statements of a few consumers as well as the description
\n      given in certain Ayurvedic books and contended that the
\n      preparation would fall within the relevant entry in the
\n      exemption notification. The Tribunal rightly points out that
\n      in interpreting statutes like the Excise Act the primary object
\n      of which is to raise Department and for which purpose<\/p>\n
                                                                        2<\/span>
\n                                                                        2<\/span>
\n      various products are differently classified, resort should not
\n      be had to the scientific and technical meaning of the terms
\n      and expressions used but to their popular meaning, that is to
\n      say the meaning attached to them by those using the
\n      product. It is for this reason that the Tribunal came to the
\n      conclusion that scientific and technical meanings would not
\n      advance in case of the appellants if the same runs counter
\n      to how the product is understood in popular parlance. That
\n      is why the Tribunal observed in para 86 of the judgment as
\n      under:\n<\/p>\n
             “So certificates and affidavits given by the Vaidyas do
\n             not advance the case of Shri Baidyanath Ayurved
\n             Bhawan Limited in the absence of any evidence on
\n             record to show and prove that the common man
\n             who uses this Dam Manjan daily to clean his teeth
\n             considers this Dant Manjan as a medicine and not a
\n             toilet requisite.”\n<\/p><\/blockquote>\n
      It is this line of reasoning with which we are in agreement.
\n      The Tribunal rejected the claim of the appellant holding that
\n      ordinarily a medicine is prescribed by a medical practitioner
\n      and it is used for a limited time and not every day unless it
\n      is so prescribed to deal with a specific disease like diabetes.
\n      We are, therefore, of the opinion that the Tribunal applied
\n      the correct principles in concluding that the product in
\n      question was not a medicinal preparation (`Ayurvedic’) and,
\n      therefore, the appellant was not entitled to the benefit of the
\n      exemption notification. Having heard the learned counsel
\n      at length and having perused the line of reasoning adopted
\n      by the Tribunal with which we are in general agreement, we
\n      see no reason to interfere with the conclusion reached by
\n      the Tribunal and, therefore, we dismiss these appeals, but
\n      make no order as to costs.”\n<\/p>\n<\/p>\n
30.          Merely because there is some difference in the tariff<\/p>\n
entries, the product will not change its        character. Something<\/p>\n
more is required       for changing the classification especially<\/p>\n
                                                                        2<\/span>
\n                                                                        3<\/span>
\n            when the product remains the same. (BPL Pharmaceuticals<\/p>\n
            Ltd.)9<\/p>\n
            31.             There cannot be justification enough for changing<\/p>\n
            the classification without a change in the nature or a change<\/p>\n
            in the use of the product. The exception being where Tariff Act<\/p>\n
            itself provides for a statutory definition, obviously, the product<\/p>\n
            has to be classified as per the definition.\n<\/p>\n
            32.             The question, therefore, is: does Chapter Sub-<\/p>\n
            heading 3003.31 contain a definition       of Ayurvedic Medicine<\/p>\n
            and, if so, common parlance test for classifiability of the<\/p>\n
            product, whether medicament or cosmetic, is inapplicable?<\/p>\n
            33.             Chapter 30 of the New Tariff Act      deals with<\/p>\n
            pharmaceutical products. Note 2 thereof provides that for the<\/p>\n
            purpose of         the Heading No.30.03, `medicaments’ means<\/p>\n
            goods …………not falling within Heading 30.02 or 30.04 which<\/p>\n
            are products comprising two or more constituents having been<\/p>\n
            mixed or compounded together for therapeutic or prophylactic<\/p>\n
            uses or unmixed products suitable for such uses.         Chapter<\/p>\n
            Heading 30.03 is in respect of medicaments.         Sub-heading<\/p>\n
            3003.10 refers to patent or proprietary medicaments other<\/p>\n
9<\/span>
\n    . 1995 Supp.(3) SCC 1<\/p>\n
                                                                            2<\/span>
\n                                                                            4<\/span>
\nthan those which are exclusively Ayurvedic, Unani, Siddha,<\/p>\n
Homoeopathic or Bio-chemic. Sub-heading 3003.20 refers to<\/p>\n
medicaments including those used in Ayurvedic, Unani, Sidha,<\/p>\n
Homoeopathic or Bio-chemic system. Inter alia Sub-heading<\/p>\n
3303.31 refers to medicaments used in Ayurvedic system of<\/p>\n
medicine exclusively in accordance with the formulae described<\/p>\n
in the authoritative books specified in the First Schedule to the<\/p>\n
Drugs and Cosmetics Act, 1940 and sold under the name as<\/p>\n
specified.\n<\/p>\n
34.          Does   Chapter   Sub-heading     3003.31    contain<\/p>\n
specific definition of Ayurvedic Medicine? We do not think so.<\/p>\n
What is provided in column 3 of Schedule is description of<\/p>\n
goods against sub-heading         3003.31.      We are afraid<\/p>\n
description of goods cannot be treated as definition. There is<\/p>\n
merit in the contention of the learned senior counsel for the<\/p>\n
Department     that Chapter Sub-heading       3003.31 provides<\/p>\n
process for manufacture of certain      medicaments including<\/p>\n
those used in Ayurvedic system and sale of the same; it is not<\/p>\n
a definition clause. Classification of a product, interpretative<\/p>\n
Rule 1 of rules for interpretation of the Schedule says, is to be<\/p>\n
determined according to the terms of the heading        and any<\/p>\n
                                                               2<\/span>
\n                                                               5<\/span>
\nrelative Section or Chapter Notes and provided such headings<\/p>\n
or Notes do not otherwise require.           Chapter Sub-heading<\/p>\n
3003.31 is an entry double dash (–) occurring under the single<\/p>\n
dash (-) heading for medicament including those in Ayurvedic<\/p>\n
Systems. As per general explanatory Note 1 appended to rules<\/p>\n
for interpretation, single dash (-) indicates the said article or<\/p>\n
group of articles to be a sub-classification of the article or group<\/p>\n
of articles covered by the said heading and double dash (–)<\/p>\n
indicates, the said article or group of articles to be a sub-<\/p>\n
classification of the immediately preceding description of article<\/p>\n
or group of articles which has single dash (-). It is, thus, clear<\/p>\n
that Chapter Heading 30.03 would cover every Sub-heading as<\/p>\n
well.   Therefore, to find out whether the product described<\/p>\n
against Sub-heading 3003.31 is a medicament or not, aid to<\/p>\n
Note 2 of Chapter 30 for the purposes of Heading 30.03 is<\/p>\n
necessarily   called   in.   Note   2   to   Chapter   30   defines<\/p>\n
medicaments for the purposes of Heading 30.03 as products<\/p>\n
comprising two or more constituents which have been mixed or<\/p>\n
compounded together for therapeutic or prophylactic uses or<\/p>\n
unmixed    products suitable for such uses.            The use of<\/p>\n
expression “uses” in Note 2 is not without significance and is<\/p>\n
                                                                 2<\/span>
\n                                                                 6<\/span>
\n           surely distinct from the expression “properties” used in Note 1<\/p>\n
           (d) of Chapter 30. The term “uses” brings within its<\/p>\n
           comprehension, the act of user and, thus, there is merit in the<\/p>\n
           submission of the learned senior counsel for the Department<\/p>\n
           that     common parlance          test is inbuilt in Chapter        Heading<\/p>\n
           30.03.\n<\/p>\n
           35.                As a matter of fact, this Court       has consistently<\/p>\n
           applied common parlance test as one of the well recognized<\/p>\n
           tests to find out whether the product falls under Chapter 30 or<\/p>\n
           Chapter 33.         In a recent decision in Puma Ayurvedic Herbal<\/p>\n
           (P) Ltd. vs. Commissioner, Central Excise, Nagpur<\/a>             10
\n                                                                              this Court<\/p>\n
           observed that in order to determine whether a product is a<\/p>\n
           cosmetic or medicament, a twin test (common parlance test<\/p>\n
           being one of them) has found favour with the courts. This is<\/p>\n
           what this Court observed:\n<\/p>\n
                          “…. In order to determine whether a product is a
\n                   cosmetic or a medicament a twin test has find favour with
\n                   the courts. The test has approval of this Court also vide
\n                   CCE v. Richardson Hindustan {(2004) 9 SCC 156}. There is
\n                   no dispute about this as even the Department accepts that
\n                   the test is determinative for the issue involved. The tests
\n                   are:\n<\/p><\/blockquote>\n
                         I.       Whether the item is commonly understood as
\n                                  medicament which is called the common
\n                                  parlance test. For this test it will have to be<\/p>\n
10<\/span>
\n     (2006) 3 SCC 266<\/p>\n
                                                                                      2<\/span>
\n                                                                                      7<\/span>
\n                 seen whether in common parlance the item is
\n                 accepted as a medicament. If a product falls
\n                 in the category of medicament it will not be an
\n                 item of common use. A user will use it only
\n                 for treating a particular ailment and will stop its
\n                 use after the ailment is cured. The approach
\n                 of the consumer towards the product is very
\n                 material . One may buy any of the ordinary
\n                 soaps available in the market. But if one has a
\n                 skin problem, he may have to buy a medicated
\n                 soap. Such a soap will not be an ordinary
\n                 cosmetic. It will be medicament falling in
\n                 Chapter 30 of the Tariff Act.\n<\/p><\/blockquote>\n<\/blockquote>\n
           II.   Are the ingredients used in the product
\n                 mentioned in the authoritative textbooks on
\n                 Ayurveda ?”\n<\/p><\/blockquote>\n
36.        In Puma Ayurvedic Herbal (P) Ltd., the question<\/p>\n
that arose for consideration before this Court            was whether<\/p>\n
the products manufactured         by the appellant therein were<\/p>\n
covered under the     category of medicaments or cosmetics.<\/p>\n
The following products were under consideration: 1. Puma<\/p>\n
neem facial pack (Neemal), 2. Puma anti-pimple herbal powder<\/p>\n
(Pimplex), 3. Puma herbal facial pack (Herbaucare), 4. Puma<\/p>\n
herbal remedy for facial blemishes, 5. Puma herbal massage<\/p>\n
oil, 6. Puma herbal massage oil for women, 7. Puma hair tonic<\/p>\n
powder (Sukeshi), 8. Puma scalp tonic powder (Scalpton), 9.<\/p>\n
Puma anti-dandruff oil (Dandika), 10. Puma shishu rakshan tel,<\/p>\n
                                                                       2<\/span>
\n                                                                       8<\/span>\n<\/p>\n
11. Puma neem tulsi. This Court referred to various decisions<\/p>\n
of this Court and held:\n<\/p>\n
              “From the above judgments it follows that the law is
\n      settled on the twin test for determination of classification of
\n      a product. We have already found that the twin test is
\n      satisfied in the present case regarding most of the items
\n      under consideration.”\n<\/p><\/blockquote>\n
37.           Applying twin test for determination of classification<\/p>\n
of products (including common parlance test), this Court in<\/p>\n
Puma         Ayurvedic     Herbal (P) Ltd.           held     that items<\/p>\n
1,2,3,4,7,9,10 & 11 were medicaments while items 5,6 & 8<\/p>\n
were liable to be classified as cosmetics under Chapter sub-<\/p>\n
heading 33.04.\n<\/p>\n
38.           We endorse the view that in order to determine<\/p>\n
whether a product is covered by `cosmetics’ or `medicaments’<\/p>\n
or in other words whether a product falls under Chapter 30 or<\/p>\n
Chapter 33 : twin test noticed in Puma Ayurvedic Herbal (P)<\/p>\n
Ltd., continue to be relevant. The primary object of the Excise<\/p>\n
Act is to raise revenue for which various products are differently<\/p>\n
classified    in   New     Tariff   Act.    Resort     should,     in   the<\/p>\n
circumstances, be had to popular meaning and understanding<\/p>\n
attached to such products by those using the product and not<\/p>\n
                                                                         2<\/span>
\n                                                                         9<\/span>
\nto be had to the scientific and technical meaning of the terms<\/p>\n
and expressions used. The approach of the consumer or user<\/p>\n
towards the product, thus, assumes significance.         What is<\/p>\n
important to be seen is how the consumer looks at a product<\/p>\n
and what is his perception in respect of such product.       The<\/p>\n
user’s understanding is a strong      factor in determination of<\/p>\n
classification of the products. We find it difficult to accept the<\/p>\n
contention of the learned senior counsel for Baidyanath that<\/p>\n
because DML is manufactured exclusively in accordance with<\/p>\n
the formulae described in Ayurveda Sar Sangrah which is<\/p>\n
authoritative text on Ayurvedic system of      treatment and is<\/p>\n
notified in the First Schedule to the Drugs and Cosmetics Act,<\/p>\n
1940 and the said product      is sold under    the name `Dant<\/p>\n
Manjan Lal’ which is the name specified for the said product in<\/p>\n
Ayurveda    Sar Sangrah, the common parlance test is not<\/p>\n
applicable. As a matter of fact, this contention is based on<\/p>\n
misplaced assumption that     Chapter Sub-heading 3003.31 by<\/p>\n
itself provides the definition of Ayurvedic Medicine and there is<\/p>\n
no requirement to look beyond.\n<\/p>\n
                                                                3<\/span>
\n                                                                0<\/span>\n<\/p>\n
39.          West Regional Bench of the Tribunal in its order<\/p>\n
dated 13.12.2000 which is subject matter of Civil Appeal<\/p>\n
4048\/2001 observed thus :\n<\/p>\n
             “The Drugs and Cosmetic Act, 1940 provides for a
\n      licence to be obtained for manufacture of Ayurvedic, Sidha,
\n      Homoeopathic and Unani medicines. Technical Advisory
\n      Board to advise Central and State Government on technical
\n      matters. Among the members of this Board are persons
\n      well versed in ayurvedic medicines, including teacher in
\n      Dravya Guna and Kalplana and a practitioner in ayurvedic
\n      medicine. It also provides for a Ayurvedic, Sidha, and Unani
\n      Drugs Consultant Committee.           The manufacture of
\n      ayurvedic medicament is subject to supervision and checks
\n      by officers appointed to carry out the provisions under the
\n      Drugs and Cosmetic Act, 1940.\n<\/p><\/blockquote>\n
             Section 3 (a) of the Drugs and Cosmetics Act, 1940
\n      defines “Ayurvedic, Sidha or Unani Drug” as follows:\n<\/p><\/blockquote>\n
      Ayurvedic, Sidha or Unani drug” includes all medicines
\n      intended for internal or external use for or in the diagnosis,
\n      treatment, mitigation or prevention of disease or disorder
\n      inhuman beings or animals and manufactured exclusively in
\n      accordance        with the formulae described          in the
\n      authoritative books of “Ayurvedic, Sidha or Unani Tibb
\n      system of medicine, specified in the First Schedule.”\n<\/p><\/blockquote>\n
             A comparison of this definition and the entry now
\n      contained in heading 3003.30 of the Tariff shows that the
\n      two are virtually identical for the purpose of both the Drugs
\n      and Cosmetics Act and the Tariff, after its amendment, the
\n      medicament which is made exclusively in accordance with
\n      the formulae described in the First Schedule to the Act is to
\n      be considered as ayurvedic medicament.<\/p><\/blockquote>\n
             The effect of insertion of the new entry in the tariff is
\n      that to bring it on a par with the Drugs and Cosmetics Act,
\n      1940. The term “ayurvedic medicament” in the tariff will
\n      have the same meaning as the meaning in the Drugs and
\n      Cosmetics Act.            Therefore, if the product          under
\n      consideration conforms to the requirements specified in that
\n      Act and the tariff, it will be entitled to be so classified. There
\n      would be no requirement that the Central Excise authorities<\/p>\n
                                                                           3<\/span>
\n                                                                           1<\/span>
\n     must independently test it for its efficacy as medicament by
\n     apply the provisions of Note (2) to the Chapter.<\/p>\n
             It must be emphasized       that these considerations
\n     were not present before the Supreme Court which passed
\n     its orders on the classification of Dant Manjan Lal. The
\n     Tribunal, and on appeal the Supreme Court, was concerned
\n     with the classification of the goods under Item 14E of the
\n     earlier Central Excise Tariff. The Tribunal has therefore
\n     rightly applied the test as to whether the product was a
\n     medicament, as is normally understood by persons in the
\n     trade, was shown to possess the therapeutic or prophylactic
\n     properties, was demonstrated as to be medicament by
\n     being prescribed for a limited period, for a specific disease
\n     or disorder. By virtue of the amendment made to the tariff,
\n     these considerations cannot be gone into. The judgment of
\n     the Supreme Court therefore cannot be a deciding factor in
\n     determining its classification under the heading as it now
\n     stands. This in fact is the view that has been expressed
\n     by the Commissioner (Appeal), Patna, whose order was
\n     cited by the advocate for the appellant. We therefore hold t
\n     hat the product was rightly classifiable under heading 30.03
\n     as claimed by the appellant.”\n<\/p>\n
We do not agree. The approach of the West Regional Bench<\/p>\n
is fallacious in what we have indicated above as it overlooks<\/p>\n
and ignores common parlance test which is one of the well<\/p>\n
recognized     tests to determine         whether the product is<\/p>\n
classifiable as medicament or        cosmetic and that has been<\/p>\n
consistently followed by this Court including with regard to this<\/p>\n
very product. It also overlooks the well-settled legal position<\/p>\n
that without a change in the nature or a change in the use of<\/p>\n
the product and in the absence of a statutory definition, the<\/p>\n
                                                                     3<\/span>
\n                                                                     2<\/span>
\nproduct will not change its character. The product DML remains<\/p>\n
the same in its composition, character and uses.         We have<\/p>\n
already held above that Sub-heading 3003.31 does not define<\/p>\n
Ayurvedic Medicine and, therefore, there cannot be any<\/p>\n
justification enough for changing the classification of the<\/p>\n
product DML which has not been held to be Ayurvedic<\/p>\n
Medicine by this Court.\n<\/p>\n
40.         The learned senior counsel for Baidyanath heavily<\/p>\n
relied upon the statement of the Finance Minister during the<\/p>\n
parliamentary debate on the question of levy of excise duty on<\/p>\n
Ayurvedic medicines. In the entire debate there is no reference<\/p>\n
to the product DML with which we are concerned. The part of<\/p>\n
statement of Finance Minister reads, `………..there is no excise<\/p>\n
duty on Ayurvedic Medicines manufactured according to the<\/p>\n
Ayurvedic formulae, some medicines appears to be Ayurvedic<\/p>\n
medicines.’ The Finance Minister also stated, `……..he must<\/p>\n
raise the dispute on that. It will be decided by the Collector. It<\/p>\n
will be decided by the appellate authority. There is a method to<\/p>\n
decide it……….’. We are afraid   the statement made by the<\/p>\n
Finance Minister in the Parliament does not advance the case<\/p>\n
of the assessee at all insofaras classification of DML is<\/p>\n
                                                                 3<\/span>
\n                                                                 3<\/span>
\nconcerned as method to decide classification has rightly been<\/p>\n
observed to be within domain of the authorities.<\/p>\n
41.         True it is that Section 3(a) of the Drugs and<\/p>\n
Cosmetics Act, 1940 defines `Ayurvedic, Sidha or Unani Drug’<\/p>\n
but that definition is not necessary to be imported in New Tariff<\/p>\n
Act.   The definition of one statute having different object,<\/p>\n
purpose and scheme cannot be applied mechanically to<\/p>\n
another statute. As stated above, the object of Excise Act is to<\/p>\n
raise revenue for which various products are differently<\/p>\n
classified in New Tariff Act.\n<\/p>\n
42.         There is no doubt that a specific entry must prevail<\/p>\n
over a general entry. This is reflected from Rule 3(a) of the<\/p>\n
general Rules of interpretation that states that heading which<\/p>\n
provides the most specific description shall be preferred to<\/p>\n
headings providing a more general description. DML is a tooth<\/p>\n
powder which has not been held to be Ayurvedic Medicine in<\/p>\n
common parlance in Baidyanath I1. We have already observed<\/p>\n
that common parlance test continues to be one of the<\/p>\n
determinative tests for classification of a product whether<\/p>\n
medicament or cosmetic. There being no change in the nature,<\/p>\n
character and uses of DML, it has to be held to be a tooth<\/p>\n
                                                               3<\/span>
\n                                                               4<\/span>
\npowder – as held in Baidyanath I1. DML is used routinely for<\/p>\n
dental hygiene. Since tooth powder is specifically covered by<\/p>\n
Chapter Sub-heading 3306, it has to be classified thereunder.<\/p>\n
By virtue of Chapter Note 1(d) of Chapter 30 even if the product<\/p>\n
DML has some therapeutic or medicinal properties, the product<\/p>\n
stands excluded from Chapter 30.\n<\/p>\n
43.         The learned senior counsel for Baidyanath relied<\/p>\n
upon the judgment of this Court in Vicco Laboratories to show<\/p>\n
that in Baidyanath I1, no tests for classification were laid down.<\/p>\n
First, in Baidyanath I1, common parlance test applied by the<\/p>\n
Tribunal has been approved.      Second, and more importantly,<\/p>\n
with regard to the very product (DML), this Court held that it<\/p>\n
could not be classified as Ayurvedic Medicine and rather the<\/p>\n
product is toilet requisite. Baidyanath I1, no doubt relates to<\/p>\n
old Tariff period i.e. prior to enactment of new Tariff Act but<\/p>\n
since   the product in its composition, character and uses<\/p>\n
continues to be the same, even after insertion of new sub-<\/p>\n
heading 3301.30, we have already held that change in<\/p>\n
classification is not justified as common parlance test continues<\/p>\n
to be relevant for classification. Vicco Laboratories is of no<\/p>\n
help to the assessee.\n<\/p>\n
                                                               3<\/span>
\n                                                               5<\/span>\n<\/p>\n
44.           In what we have already discussed above, it is not<\/p>\n
necessary to refer to other decisions cited by the learned<\/p>\n
Senior Counsel for Baidyanath. Be it noted here that Mr. C.A.<\/p>\n
Sundaram, learned Senior Counsel submitted before us that<\/p>\n
matters should be decided by this Court as raising neat<\/p>\n
question of law about classification of product DML on the<\/p>\n
available material and any further inquiry or remand was<\/p>\n
unnecessary.\n<\/p>\n
45.           Before we part with the case, we may address to<\/p>\n
the plea of res judicata raised by the learned Senior Counsel<\/p>\n
for the Department. Mr. K. Radhakrishnan pressed into service<\/p>\n
few legal maxims in this regard. It is true that maxim Nemo<\/p>\n
debet bis vexari pro una et eadem causa            is founded on<\/p>\n
principle of private justice as it   states that no man ought to<\/p>\n
be twice put to trouble if it appear to the court that it is for<\/p>\n
one and the same cause.         The maxim Interest republicae<\/p>\n
sit   finis litium   concerns the State that law suits be not<\/p>\n
protracted.     This maxim is based on public policy.       In our<\/p>\n
opinion, these maxims cannot be applied as a rule of thumb in<\/p>\n
the taxation matters.    In the matters of classification of goods,<\/p>\n
the principles that have been followed      by the courts – which<\/p>\n
                                                                 3<\/span>
\n                                                                 6<\/span>
\nwe endorse – are that there may not be justification for<\/p>\n
changing the classification without a change in the nature or<\/p>\n
a change in the use of the product; something more is required<\/p>\n
for changing the classification especially when the product<\/p>\n
remains the same. Earlier decision on an issue inter parties is<\/p>\n
a cogent factor in the determination of the same issue.           The<\/p>\n
applicability of maxim Res judicata pro veritate occipitur in<\/p>\n
the matters of classification of goods has to be seen in that<\/p>\n
perspective. The interpretation given by this Court                  in<\/p>\n
Baidyanath I1 with regard      to   this    product has          been<\/p>\n
considered and applied by us after amendment because<\/p>\n
Chapter Sub-heading 3003.31 does not contain definition of<\/p>\n
Ayurvedic Medicine and the product DML in nature, character<\/p>\n
and uses remains the same as it was prior to amendment.<\/p>\n
46.        As a result of the foregoing discussion, appeals of<\/p>\n
Baidyanath must fail and are dismissed.        The Department’s<\/p>\n
appeals are allowed. The parties shall bear their own costs.<\/p>\n
                                           ………………………J.\n<\/p>\n
                                                          (D.K. Jain)<\/p>\n
                                                                     3<\/span>
\n                                                                     7<\/span>
\n                 ………………………J.\n<\/p>\n
                             (R.M. Lodha)<\/p>\n
New Delhi
\nApril 13, 2009<\/p>\n
                                           3<\/span>
\n                                           8<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Central Excise, … vs Baidynath Ayurwed Bhawan Ltd on 13 April, 2009 Author: R Lodha Bench: D.K. Jain, R.M. Lodha REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. 4048\/2001 Commissioner of Central Excise, Nagpur .. Appellant Vs. Shree Baidyanath Ayurved Bhawan Ltd. .. Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-108651","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Central Excise, ... vs Baidynath Ayurwed Bhawan Ltd on 13 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-central-excise-vs-baidynath-ayurwed-bhawan-ltd-on-13-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Central Excise, ... vs Baidynath Ayurwed Bhawan Ltd on 13 April, 2009 - 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