Customs, Excise and Gold Tribunal - Delhi
Commissioner Of C. Ex. vs Ozone Ayurvedics on 23 July, 2003
Equivalent citations: 2003(90)ECC550, 2003ECR346(TRI.-DELHI), 2003(157)ELT196(TRI-DEL)
ORDER S.S. Kang, Member (J)
1. Revenue filed these appeals against the order-in-appeal passed by the Commissioner (Appeals), whereby the Commissioner (Appeals) held that wanish skin cream/lotion is manufactured by the respondents is a ayurvedic medicine.
2. Heard both sides.
3. The contention of the revenue is that wanish skin cream/lotion is not a medicament as provided under Chapter 30 of the Central Excise Tariff. It is only a skin cream for preventing and diminishing post delivery stretch, scars, etc., and these marks, on the skin, are not a disease or ailment, but these are only a natural phenomena and the product, in question, is only used as cosmetic to improve the condition of the skin.
4. The contention of the revenue is also that wanish skin cream/lotion can be used by any person at any time without the prescription of the medical practitioner. The contention of the revenue is that normally the medicine is prescribed by a medical practitioner and it is used for a limited period. The contention of the revenue is also that the product, in question, is not classifiable as ayurvedic medicine.
5. The contention of the respondents is that wanish skin cream/lotion is manufactured out of ingredients, which are mentioned in ayurvedic text-book i.e. Dravyaguna Vigyan Vol. II, 4th Edition 1978. They also produced evidence to prove that wanish skin cream/lotion is sold at the medical/chemist shop on the prescription given by a doctor or medical practitioner. Wanish skin cream/lotion is used to remove the stretch marks on the skin. The stretch marks on the skin is a condition normally in ladies after giving birth to a child. The contention of the respondents is that the evidence produced by them to show that the wanish skin cream/lotion sold at the chemist shop on a prescription given by a medical practitioner, is not disputed by the revenue. Their contention is also that wanish skin cream/lotion is used to remove the pregnancy stretch marks, this fact is also not disputed by the revenue. Respondents relied upon the decision of the Hon'ble Delhi High Court in the case of Manish Pharma Plasto Pvt. Ltd. v. Union of India reported in 1999 (112) E.L.T. 22. The contention of the respondents is that in this case the Hon'ble High Court held that Nycil Prickly heat powder is classifiable under Chapter 30 of the Central Excise Tariff as medicament as the powder is used for a specific purpose.
6. In the present case, the dispute is regarding classification of wanish skin cream/lotion manufactured by respondents. The respondents in this case produced evidence, which is relied upon by the Commissioner (Appeals) to show that wanish skin cream/lotion is sold at medical/chemist shop on the prescription given by a doctor or a medical practitioner and it is used for treatment of pregnancy stretch marks and scars.
7. We find that this finding of Commissioner (Appeals), based on the evidence produced by the respondents, is not rebutted by the revenue before us. The contention of the revenue is that the product, in question, is not an ayurvedic medicine, but it is a cosmetic. The burden of proving that the product, in question, is a cosmetic, was on the revenue and the revenue has not discharged this burden as no such evidence is produced by revenue in support of their claim. On the contrary, we find that the product, in question, is manufactured out of ingredients mentioned in ayurvedic text book and is used for treatment of pregnancy stretch marks. The revenue is failed to produce any evidence that this product is known in the trade market as cosmetics.
8. Further, we find that the Hon'ble Delhi High Court in the case of Manish Pharma Plasto Pvt. Ltd. v. Union of India (supra), while deciding the classification issue in respect of Nycil Prickly heat powder under Chapter 30 of the Central Excise Tariff, held that the product, in question, satisfies the common parlance test or popular meaning test The powder, in question, is not used by a consumer as a daily use product and is a product normally used for the specific purpose for treating prickly heat. The ratio of this decision is fully applicable on the facts of the present case.
9. In view of above decision, we find no infirmity in the impugned order. The appeal is dismissed.