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It is also claimed that the product is manufactured under a Drug licence dated 20th September 1981 issued by the Food and Drug Ad-ministration. The said Administration has given a certificate certifying that 'Selsun' is a drug within the meaning of Section 3(b) of the Drugs and Cosmetics Act. It is the case of the appellants that Selsun is not available in the Departmental Stores, but only with Chemists who have a licence under the Drug and Cosmetics Act to sell the same. Abbott Laboratories send their literature only to physicians for their recommendations to their patients. To support the stand taken by the appellants that the product is a drug/medicine they have filed affidavits of chemists stating that the product is a patent and proprietary product and that the chemists require a valid drug licence to buy, stock and sell the same. Normally it is sold to the customers who come with a prescription for Selsun from a Registered Medical Practioner. In addition to that, the appellants have also filed letters from Doctors and users of the Product specifically stating that Selsun is a useful product in the treatment of the diseases already men- tioned above. 
Selenium disulphide                          2.5%

Surfactant                                   17.0%

Inter stabilizer                             5.2%

Water                                        75.3%

and also Selenium sulfide lotion also figures in U.S.P XX page-721 wherein, it is shown to contain a suitable buffer, detergent and dispersing agent. It is further stated on page 5 of the Cosmetic-Science and Technology and 'Undoubtedly, many products con-form to the definitions of both drugs and cosmetics under the Act, such as complex remedies, acna remedies, hormone preparations, antiperspirants and many other preparations which can logically be called both drugs and cosmetics.

We do not think that we can accept all the contentions of the learned counsel for the respondents except certain obvious admitted positions. The submission that the product in question must be equated to shampoo falling under Chapter 33 is not at all correct.

It is true that the learned counsel for the appellants have placed reliance on the definition of the words 'cosmetic and drug' as defined in the Drugs and Cosmetics Act, 1940. On a perusal of the definitions, we can broadly distinguish cosmetic and drug as follows :-

Yet another reason given by the CEGAT for not accepting the case of the appellants was that the product is sold with a pleasant odour and, therefore, it must be treated as a cosmetic. Selenium Sulphide as van unpleasant odour and to get rid of it insignificant amount of perfume is used and make it acceptable to the consumers. A medicine, for example, sugar - coated pill will nevertheless be medicine notwithstanding the sugar-coating. Likewise the addition of insignificant quantity of perfume to suppress the smell will not take away the character of the product as a drug or medicine. Again one other reason given by the Tribunal is regarding the packing. The Tribunal has held that the product is cosmetic because it is packed in an attractive plastic bottle. This by itself will not change the character, as cosmetic is put up for sale with some indication on the bottle or label that it is to be used as cosmetic or it is held out to be used as a cosmetic. As already noted the label here gives warnings. The fact that it is packed in a plastic bottle is wholly irrelevant criteria.