Customs, Excise and Gold Tribunal - Mumbai
Hagel Capsule Industries Ltd. vs Commissioner Of Central Excise on 23 June, 2004
Equivalent citations: 2004(172)ELT470(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. Heard both sides & considered the material a record. It is found-
a) The issue involved is classification of the product 'Microshield-2' , utilized, as per Doctors certificates, on record, as an antiseptic. The show cause notice issued proposed, to deny the classification as medicament under 3003.10 & proposed the classification under 3304, on the grounds-
"It is observed from the labels of the said product that the same contain a) Emollient b) Moisturizer and can be used for body washing. Thus the main function of the product is taking care of the skin while antiseptic property is a subsidiary one' Hence it appears that the said product is properly classification under Ch.SH.3304.00 of CETA, 1955'
b) The CCE(A) confirmed the classification, as proposed in the notice, by arriving at the following finding "It is observed that the subject products in dispute, which are referred to as Microshield 2 Chlorhexidine skin cleanser with emollient and moisturiser containing Chlorhexidine Gluconate Soluation 10% v/w, Microshield T triclosan skin cleaner with emollient and moisturiser containing Triclosan 1.0% w.v, Microshielf PVP providone-Iodine containing povidone-Iodine 7.5% w/v and micro Handrub with emollient and moisturiser containing chlorhxidine Gluconate solution IP 2.5% v/v, are all containing emollient and mosturiser for washing and care of skin along with certain specified drug ingredients surveyed as antiseptic. Therefore, while these have some prophylactic application, there are essentially preparations for the care of skin and are barred from chapter 30 by reasons of Chapter Note 1(d).
Then again, the appellants seeks reliance upon the drug license issued in favour of M/s. NR Jet Enterprises Ltd. by the Drug Authority, Govt. of Maharashtra. I find from the said license issued under the Drug & Cosmetics Rules, 1945 on 19.5.95, that the items authorized manufacturer under the requirement of the Drug Rules had been prescribed with reference to certain percentages of the drugs required therein. In respect of Microshield Chlorhexidine, the Chlorhexidine Gluconate Solution is 20% w/v. Similarly, Microshield PVP-S, povidone Iodine is 10% w/v, while Microshield Antiseptic concentrate is referred with Chlorhexidine Gluconate Solution percentage of 7.5 & 15% w/v, Finally Microshield PVP Povidone-Iodine surgical handwash is referred with povidone-Iodine 7.5 w/v. What has been manufactured by the appellants under the said prescribed percentage of the referred active ingredients is different in terms of percentage, although the trade name is the same as that referred in the drug licence. It is therefore, that the Asstt. Commissioner come to the conclusion that the subject products, containing essential emollient and moisturiser, are preparation for the care of the skin, while the antiseptic function is only subsidiary. I find the said conclusion reached by him to be correct and the subject products would not qualify as medicinal topical antiseptic recognized by the pharmacopoeia with reference to the percentage content of the specified ingredients. These have been reduced to the category of hand cleansing agents for skin care by the predominant use of emollient and moisturizers.
Appellants claim based on a singular certificate issued by Doctor only establishes that the product Microshield 2 is utilised by him for purposes of antiseptic use, but it is not known whether the said Microshield 2 corresponded to the percentage described under the Drug licence, for the active ingredient, or otherwise. Also, it does not established in any way the appellants case that the only users for this product are the hospitals and other similar places and not generally bought and sold by other persons from the market. There is no indication on the labels suggesting either of its sale through pharmacists or under prescriptions from the Doctors. Accordingly, these products are liable to be brought and sold in any shop and no restriction is placed in this regard. The heavy Emollient and moisturiser content suggests that the subject goods are essentially for the care of skin and therefore, not liable to be stored and bought through pharmacists.
c) Finding arrived, is not based on any technical or experts opinion to the effect that the percentage of antiseptic ingredient is "do not contain a sufficient high level" as required by HSN notes under 3003, now being shown by the learned DR or and as held by the Tribunal in case of MAC laborites (2004 (167) ELT 412) or 2003 (154) ELT 328SC & to rule out the classification under 3003.10. Relying upon the decision of Muller & Philips (2004 (167) ELT 374 SC & when Drug control authorities accept the product & do not insist on higher percentage & take no cognizance of the percentage not being as high as prescribed, under their Act, then no reason is found to eject the entity from heading 3003.10 of CETA 1985.
d) The issue is found to be also settled by the Tribunal in favour of assessee in assesses own case 2002 (142) ELT 599, confirmed by the Supreme Court. Following the same, the entity herein when accepted to be used as an antiseptic by a Doctor the same can not be found to classified anywhere other than under 3003.10 merely of percentage issues when that question was not raised in the show cause notice.
2. In view of the findings arrived, classification is to be upheld under 3003.10 & appeals consequently allowed.
3. Ordered accordingly.
(Pronounced in Court)