Customs, Excise and Gold Tribunal - Mumbai
Group Pharmaceuticals Pvt. Ltd. vs Commr. Of C. Ex. on 5 January, 1999
Equivalent citations: 1999(108)ELT359(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Applications are for waiver of deposit of duty of Rs. 10.20 lakhs. Duty has been demanded on the ground that the two products manufactured by the applicant, Clohex and Stolin are not patent or proprietary medicines classifiable under Heading 30.03 of the tariff but preparations for oral or dental hygiene falling under Heading 33.06. Advocate for the applicant says that the Clohex contains 0.2% chlorhexidine gluconate. He refers to the Extra Pharmacopoeia of Martindale to show that the preparations containing active ingredients to this extent can be used as for the treatment of gingivitis and prevention of plague. He also refers to the order of the Commissioner dated 27-5-1997 holding that a formulation containing 0.2% Chlorhexidine Gluconate would be classifiable under Heading 30.03. He says that the other product contains povidone iodine 1% and refers to the Extra Pharmacopoeia to say such goods are also used as an antiseptic and disinfectant. He cites the order dated 20th December, 1990 of the Assistant Collector, Division A, Bombay-I, in this regard.
2. The departmental representative contends that note 1(d) to Chapter 30 excludes preparations of Chapter 33 even if they have curative or propylaetic properties. Chapter 33 includes in its scope goods containing only properties such as essential oils falling under Heading 33.01. The use of the words term inter alia in note 2 of Chapter 33 shows that even products which are put up with an indication for use as cosmetics or toilet preparations whether or not contained subsidiaries or antiseptic consequence may not fall under Headings 33.03 to 33.07.
3. We are not required to go into question as to whether everything which has medicinal properties is classifiable under Heading 33.03, at this stage. The other point raised before us by the departmental representative, is not, prima facie relevant to the issues with which we are concerned. The Commissioner (Appeals) in the impugned order has gone by the test reports which say that the goods are meant for oral and dental hygiene and his view that Heading 33.06 is more specific. We have seen the packing of Clohex; it does not contain any indication that it is used for cosmetics or oral preparation and has not put up any form specialised. The reference in the Extra Pharmacopoeia to the use of 0.2% Chlorhexidine Gluconate for the treatment of gingivitis also strongly supports the case. The position is slightly different with regard to the other product. We have not been shown its packing. The Extra Pharmacopoeia indicates that povidone IP provides 8 to 12% of available iodine, whether a formulation which provides 0.12% povidone iodine IP would be effective as an antiseptic has to be gone into in detail. We note, however, that the main demand of 9.46 lakhs is upon the first product. Taking this into account we direct applicant to deposit Rs. 2 lakhs within a month from the date of receipt of this order and deposit of such amount, deposit of remaining amount is waived and stay its recovery.