Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise vs Pond'S (India) Ltd. on 1 December, 1999
Equivalent citations: 2000(116)ELT708(TRI-CHENNAI)
ORDER V.K. Ashtana, Member (T)
1. In these 14 appeals by Revenue, the-simple issue for consideration is whether product "White Petroleum Jelly" manufactured, put into containers namely plastic tubes and plastic containers are to be classified under Chapter 27 as Petroleum Jelly or under Chapter 33 as cosmetics.
2. Heard Ms. Aruna Gupta, ld. DR who submits that while there is no doubt that the material contained in these containers is merely White Petroleum Jelly I.P., however other legends printed thereon remove it from the purview of Chapter 27 and make to fall within the purview of Chapter 33. In the case of products packed in plastic containers other than tubes, the legend also includes the trade name "Vaseline" and thereafter the words "an effective dressing for burns, cuts, scrapes etc." and further words "pure and safe". In the packing of the materials in tubes also, apart from the trade name "Vaseline" the legend printed as "Lip Guard" and "relieves dry lips". Ld. DR, submits that in the case of jelly packed in the said tubes, the same is sold as a Lip Guard for relieving the dryness of lips when they are applied. Thus, the use is that of protecting and softening the skin of the lips . This is a cosmetic use and hence the product would fall under Chapter 33. Similarly, she submits that in the other case, where the product is packed in plastic container, the legend advertises it as "dressing" for minor skin conditions such as "burns, cuts and scrapes etc" and would also make it as used for the protection of the skin infections by protecting the surface of the skin. Such a protection of the surface of the skin would again amount to cosmetic use making the product fall under chapter 33. In this connection, she submits that Chapter Note 33 in the HSN in the heading "General" clearly records that chapter 33 does not cover Petroleum Jelly, not perfumed to be put in tins or other containers labelled simply "petroleum jelly" or again "Pure Petroleum Jelly". It is indicated therein that such an item would fall under Heading 27.12 . Ld. DR is at pains to point out that the words "simply" in respect of the nature of the label shows that where containers contained any other legend or other than merely namely of the product viz. petroleum jelly, then the same would be considered even in terms of this note as not being a pure product falling under Chapter Heading 27.12. In this case, such extra legends exist and therefore the product would fall under Chapter 33. In this connection, she also cites the case of Alpine Industries v. C.C.E. as in 1997 (92) E.L.T. 53 wherein a similar product namely Lip Salves used for treatment of charred lips was classified under 33. On this ground, the Revenue prays for classification under Heading 3304 of the CETA '85.
3. Ld. Consultant for respondents vehemently counters the above submissions. He submits that packages in which the said product is sold clearly bear the legend "White Petroleum Jelly - I.P.". He submits that it is not in dispute that the said product is not perfume. It is also not containing any other adhesives and is comprised purely of white petroleum jelly conforming to Standards of the Indian Pharmacopoeia. He distinguishes the decision in the case of Alpine Industries as the product therein was a mixture of a number of items including Lanoline, Beeswax and others. There was no Petroleum Jelly-IP considered in that decision. Therefore the said decision stands distinguished on facts itself. He further submits that as per Chapter Note 5 to Cchap-ter 33 of the Tariff Heading 3304 applies, inter alia, to beauty cream and barrier creams to give protection against skin irritants. He submits that white jelly is neither a beauty cream nor barrier cream being merely pure petroleum jelly. He submits that beauty cream and barrier creams have a different base and submits that the items listed in the said chapter note pertained to a totally different species of products. Ld. Consultant also submits that the Commissioner (Appeals) in the order impugned has submitted that the legend "effective for burns, cuts, and scrapes etc." are not suggestive of nature of cosmetics used. At best they may support for classification as medicaments. However, since it is well established that white petroleum jelly has no therapeutic or prophylactic value, therefore it cannot be definitely under medicaments. He submits that vide Trade Notice No. 7/88 dated 21-1-1988 issued by the Central Excise Collectorate 'Meerut' it has been clarified that Petroleum Jelly-IP, does not have any therapeutic value and is sometimes used as a vehicle for cosmetics, drugs etc. Therefore, it cannot be treated either as bulk drug or medicaments. On the other hand, if specifically mentioned in sub-heading 2712.10 of the Tariff, it would have to be classified only under that sub-heading . Similar trade notice was also issued by Madurai Collectorate bearing No. 7/88, dated 21-1-1988 and Bholpur Trade Notice dated 22-3-1988 . The last Trade Notice has been taken note of by the learned Commissioner (Appeals) in the order impugned. He therefore submits that when a specific sub-heading exists in the Central Excise Tariff for the product "White Petroleum Jelly", all other issues would be extraneous to the matter.
4. With respect to the HSN notes referred to by ld. DR, ld. Consultant submits that since the label advertised contains merely as a Petroleum Jelly-I.P. and the other legends in no way changes the nature of the product shown to be contained therein, therefore the said chapter note is clearly in their favour as it excludes the said products from Chapter 33 and specifically puts it under Chapter Heading 27.12. As far as brand name of "Vaseline" , there is no bar under Chapter 27 for use of any trade name . Therefore, ld. Consultant submits that there is no infirmity in the order of the learned Commissioner (Appeals) and the same should be upheld.
5. We have carefully considered the rival submissions and records of the case. We find that the simple point for consideration before us is whether by introducing the legend "Lip Guard; relieves dry lips" and "an effective dressing for burns, cuts, scrapes etc." packed in such containers become classified under Chapter 33 instead of Chapter 27 as held in the order impugned by Revenue.
6. On a careful consideration of the matter, we are of the considered opinion that the product would be rightly classified under chapter sub-heading 2712.10 as "White Petroleum Jelly-I.P." for the following reasons :-
(a) The product contained in these containers is purely White Petroleum Jelly conforming to Standard of Indian Pharmacopoeia and it has been shown clearly on these containers. The consumer when he buys this product is clearly aware of the fact that these containers do not contain anything else except White Petroleum Jelly-I.P. There is nothing to suggest that the product is having any other ingredients therein . .
(b) The tariff having provided for a specific entry covering the White Petroleum Jelly, wosued Trade Notices classifying the White Petroleum Jelly-I.P under culd clearly supercede all other considerations like the intentions behind the legend contained on the containers.
(c) Even if additional information that the said Jelly can be used as "Lip Guard" or can be used as a neutral dressing for minor burns, cuts, scrapes etc. is considered, such use does not change the nature of the contents which remains White Petroleum Jelly-I.P.
(d) We also find substantial force in the views of the learned Commissioner (Appeals) that Chapter 33 when read with Note 5 thereto suggests a different species of product like beauty cream and barrier creams etc., such creams are composed of a number of ingredients and are specifically formulated for the care of the skin or the protection thereof. The White Petroleum Jelly cannot be, by any stretch of imagination, held to be belonging to the same species of the product and therefore it cannot be said that it is for use as cosmetics or toilet preparations in terms of Heading 33.04.
(e) We also find that even as far back as 1988, a number of Collectorates had issued Trade Notice classifying the white Petrolum Jelly-I.P. under Chapter 27.
7. In view of the aforesaid analysis, we do not find any infirmity in the orders-in-appeal which compels us to interfere with the same. Therefore, we find no merits in these Revenue appeals and same are dismissed.