Customs, Excise and Gold Tribunal - Delhi
Cce vs Harbans Ram Bhagwan Das Ayurvedic ... on 8 October, 2002
Equivalent citations: 2003(85)ECC545, 2003(151)ELT202(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal, filed by Revenue, the issue involved is whether Tel Rahat Rooh manufactured by the Respondents M/s. Harbans Ram Bhagwan Das Ayurvedic Sansthan (P) Ltd. is classifiable under sub-heading 3003.30 of the Schedule to the Central Excise Tariff Act as claimed by the Respondents or under sub-heading 3305.10 as claimed by the Revenue.
2. When the matter was called no one was present on behalf of the Respondents. We observe that in the past also whenever the matter was posted for hearing since October, 2001/ no one had appeared on behalf of the Respondents. We also observe that the Respondents have filed Cross Objection under their letter dated 29-9-2001. We, therefore, take the appeal for disposal after perusing the records and hearing Shri R.C. Sankhla, learned D.R.
3. Learned D.R. submitted that the Asst. Commissioner, Central Excise, under Adjudication Order No. 65/99, dated 18-8-99 classified the impugned product under sub-heading 3305.10 of the Central Excise Tariff relying upon the decision of the Supreme Court in the case of Shree. Baidyanath Ayurved Bhaivan Ltd. v. CCE, Nagpur, 1996 (83) E.L.T. 492 (SC); that, however, the Commissioner (Appeals) under the impugned Order allowed the appeal of the Respondents on the ground that the ingredients used are herbal and vegetal, the process of manufacture is ayurvedic and the product is manufactured under Drug license from the Ayurvedic and Unani Sewa Nideshak, Lucknow and it is known so among the user public. The learned D.R., further, submitted that the impugned product can be used daily which is apparent from the label/literature supplied with each pack; that it is not prescribed by a medical practitioner; that the Supreme Court in Baidyanath case has held that ordinarily the medicine is prescribed by a medical practitioner and it is used for limited time and not everyday unless it is so prescribed to deal with a specific disease like diabetes. The learned D.R. also relied upon the decision of the Tribunal in the case of Dabur (India) Ltd. v. CCE, Jamshedpur, Final Order No. A/692/CAL/2002, dated 26-6-2000 [2002 (145) E.L.T. 441 (T)] wherein the Lal Tel has been classified under Sub-heading 3304 of the Central Excise Tariff. He also referred to Note l(d) to Chapter 30 which provides that preparations of Chapter 33, even if they have therapeutic or propylactic properties, are not covered by Chapter; that as the preparations for use on the hair are classifiable under Chapter 33.05 the impugned product is correctly classifiable under the said heading. On the other hand the Respondents have submitted in their cross objection that perception of product in popular parlance has not been ascertained in any manner including by obtaining trade opinion; that similarly therapeutic properties of the product have not been ascertained; that a perusal of label/literature would show that nowhere it is mentioned that the product is an item of daily use but may be used daily that too for one's ailment only till the same is cured; that in any event such label or literature can be no criteria for whether the duty is payable under a particular heading or sub-heading; that the impugned product can be used on bald head curing ailment and it has never been marketed as preparation for use on hair; that the Appellate Tribunal in the case of CCE, Pune v. Ram Krishna Vidyut, 2000 (125) E.L.T. 748 (Tribunal) has classified Mahabhrangraj oil under sub-heading 3003.30 as Ayurvedic medicine.
4. We have considered the submissions of both the sides. Heading 33.05 of the Tariff applies to "preparations for use on the hairs". The Supreme Court in the case of Shree Baidyanath Ayurved Bhawan, while considering whether Dant Manjan Lal falls within the meaning of Ayurvedic medicine as held that ordinarily a medicine is prescribed by a Medical Practitioner and it is used for a limited time. Nothing has been brought on record to show that the impugned product is used on the advice of Medical Practitioner and nor any certificate has been brought on record that it cures any of the diseases mentioned in the label. The Larger Bench of the Tribunal also in the case of Baidyanath Ayuwed Bhawan v. CCE, Patna [2002 (140) E.L.T. 459 (T-LB) = 2002 (48) RLT 897] has held that Dant Manjan Lal is not an Ayurvedic Medicament as the Appellants therein had not produced any evidence that the said product was prescribed by a Medical Practitioner as a medicine for a disease or condition. Merely mentioning on the label that it cures headache or provides relief on cuts and burns the oil would not make the product an Ayurvedic medicament. Similar views were expressed by the Tribunal in the case of Dabur (India) Ltd. wherein it has been held that "statement on packet regarding usefulness in infantile rickets does not also change the situation. Lal Tail is not a medicine prescribed for treatment of infantile rickets." Following the ratio of all these decisions we set aside the impugned Order and held that the impugned product Tel Rahat Rooh is classifiable under Heading 33.05 of the Central Excise Tariff. Cross Objection is also disposed of as no other plea has been made therein.