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3. Ld. Counsel appearing on behalf of the appellant submit that the product in question is mixture of four Homeopathic medicine namely Arnica, Canthris, Pilocarpin and Cinchona in coconut oil base. The ingredients are listed in Homeopathic Pharmacopia of India and Materia Medica. The Oil is therapeutic use for the disease conditions of hair loss, insomnia and other diseases. The ingredients drugs have been mentioned in the Materia Mendica for treatment of alopecia hairfall/ baldness, dandruff, headache and sleeplessness. It is manufactured under Drug Licence issued under Rule 25C of Drugs & Cosmetic Rules 1945 by the Director, Indian Medicine & Homeopathy renewed by Addl. Director & Under Rule 25 ( C ) of Drugs & Cosmetics Rules 1945 in terms or Rule 85 D ibid by the Director, Indian Medicine & Homeopathy and is renewed by the Additional Director & Drug Controller (Homeo), Department of Ayush, Govt of Telangana. The product is a medicament, as per analysis report and the certificate issued by the Additional Director & Drug Controller, Department of Ayush. It is covered Rule 35 of Schedule K of Drugs & Cosmetic Rules (Homeopathic Hair Oil having active ingredients upto 3 x potency). The said Schedule K covers only drugs and not cosmetics. The label of the product indicates that the product is homeopathy medicine under Schedule K, ingredients and composition, indications and contra indications and mode of application. The contents of the label clearly indicate that it is understood in common parlance by users and traders as homeopathic (under Schedule-K). He also produced copy of order passed by the Honble Andhra Pradesh High Court, in reference to APGST Act, wherein the Honble High Court relying on the composition, description on the label, common parlance and decisions of Honble Supreme Court in matters relating to determination whether a product is a drug or medicament or cosmetic held that the goods are medicines and not cosmetics. The Advance Ruling Authority of Commercial Taxes, Govt of Tamil Nadu also held the product to be a homeopathic for the purpose of TNVAT Act, 2006. He also submits that since 1994, the goods were held to be medicine and was examined four times by different officers including two Commissioners (Appeals) and sub-ordinate officers. He submits that the issued involved of hair oil being medicament as squarely covered by the Tribunal decision in case of Bakson Homeo Pharmacy (P) Ltd Vs CCE, New Delhi - 2001 (136) ELT 485 (Tri, Del). He submits that there is no change in tariff act / ingredients or process of manufacture to revise the classification of goods in question, which was settled by the previous order. He submits that the goods even after change in tariff structure would remain classified under Chapter 30 since it a medicament. He submits that only for the reason that the goods are in retail packing or mention of hair oil cannot mean that the goods are out of chapter 30 or are cosmetics. He submits that the licence by the Drug Controller is also important to classify the product. He submits that without change in the nature or use of the product the classification made by them cannot be set aside. He also field written submission to the effect and judgment of Honble Supreme Courts in case of CCE Vs. Sharma Chemcial Works 2003 (154) ELT 328 (SC) and CCE Vs. Pandit D.P. Sharma 2003 (154) ELT 324 (SC). Further he relies upon the Judgment of Honble Apex Court in case of Sujanil Chemco Industries Vs. CCE, Pune 2005 (181) ELT 206 (SC) and Tribunal order in case of Bakson Homeo Pharmacy (P) Ltd. Vs. CCE, New Delhi 2001 (136) ELT 485 (TR- DEL).

7. We find from the impugned order that the label mentions that it controls hair fall, prevents dandruff and that on the hind side it states indication : Improves blood circulation to the hair roots, thereby stops hair fall and promotes hair growth. Also controls dandruff, removes headache, induces good sleep and maintained natural colour of hairs. We find that only for the reason that it does not mentions the name of particular disease i.e alopecia or insomnia, the goods do not get categorized as non-medicines. Nothing was brought to our notice that it is mandatory that to fall under the category of medicine or to merit classification under chapter 30, each medicine should mention the technical or medical name of all diseases for which it is prescribed as the same is very absurd preposition which would make all medicine to be out of the purview of chapter 30. The label clearly indicates that the goods in question are Homeopathic medicine falling under schedule K and for treatment of hair loss, loss of sleep and other ailments. It is not necessary that it should mention the medical name of such disease. We find that the label of the product nowhere promotes the goods in question as only for Hair, falling into category of cosmetic or toilet preparations. It does not indicate that it beautifies the hair or enhances the beauty. It is not even perfumed. There is no indication on the label of the product to publicize it as Cosmetic product neither it is known in market as Cosmetic product in common parlance. The label of the product clearly shows the different conditions i.e ailments for which it is used and a normal hair oil would not be put to such use. We find that nowhere the show cause notice or the impugned order it is demonstrated that the product in question was projected as cosmetic or toiletary product by the Appellant or known in the market as such. We also find that the Appellant has submitted certificates issued by the Practitioners in the field that the product in question is used as medicine. Only for the reason that it is sold by the medical shop as well as general stores or that it is not sold under the prescription of doctors would not take it out from the category and classification as medicine. Our views are based upon the judgment of Honble Apex Court in case of Commissioner v. CIENS Laboratories 2013 (295) ELT 3 (SC). The relevant excerpts of the order are as under :

20. It will be seen from the above definition of cosmetic that the cosmetic products are meant to improve appearance of a person, that is, they enhance beauty. Whereas a medicinal product or a medicament is meant to treat some medical condition. It may happen that while treating a particular medical problem, after the problem is cured, the appearance of the person concerned may improve. What is to be seen is the primary use of the product. To illustrate, a particular Ayurvedic product may be used for treating baldness. Baldness is a medical problem. By use of the product if a person is able to grow hair on his head, his ailment of baldness is cured and the persons appearance may improve. The product used for the purpose cannot be described as cosmetic simply because it has ultimately led to improvement in appearance of the person. The primary role of the product was to grow hair on his head and cure his baldness.

9. The above judgments of the Honble Apex Court and the Tribunal clearly spells out that even though the goods are sold over the counter and not on a medical prescription, it would not lead to the goods being out of the category of medicine. The adjudicating authority has held that since the hair growth is cosmetic necessity and the product label shows the lady with long hair the goods are cosmetic product. We are not in agreement with the above views of the adjudicating authority. Firstly when the different branches of medicine and the Licensing authorities recognize the baldness or hairfall as disease in that case the adjudicating authority cannot take a different view which is not recognized by the branches of medicine. Secondly the product clearly mentions that the product in question is used for other ailments also such as sleep loss, increase of blood circulation and it nowhere depicts itself as for hair care or enhancing beauty of hair. The label indicates the product as Homeoptahic medicine under schedule K, ingredients and their composition, indications, contra indications and mode of application. The content of label thus itself shows that even in common parlance it is understood by the users and the traders as Homeopathic medicine. There is no advice on the label nor does it suggests that it can be used as hair oil. It is not disputed about the fact that the product is made of four Homeopathic medicines as ingredients namely Arnica Mount, Cantharis, Pilocarpin and Cinchona and is used to treat the hair loss, insomnia, dandruff, headache and other ailments. It is manufactured under Drug Licence issued under Rule 25 C of Drugs & Cosmetic Rules 1945 and in terms of Rules 85D by the Director, Indian Medicine & Homeopathy. The licence has been renewed from time to time by the Additional Director & Drug Controller (Homeo), Department of Ayush, Government of Telangana State. Even as per analysis report & Drug Controller, Department of Ayush the product is medicine. The product is covered by serial no. 35 of Schedule K of Drugs and Cosmetic Rules (Homeopathic Hair oils having active ingredients upto 3X potency) and the said schedule covers only drugs and not Cosmetics. The product has already been held to be Drug by the Honble Andhra Pradesh High Court in reference to APGST as well as Commercial taxes. The Advance Ruling authority of Commercial Taxes, Government of Tamilnadu for the purpose of TNVAT Act 2006 held that product to be a homeopathic medicine. We find that even before the subject cases, on many occasions in the past, Appellant were issued show cause notices for classification of goods as cosmetic and the Appellate Authority after going into all the aspects of common parlance as well as contents of the product and its usage held that the product is Homeopathic medicine. The adjudicating authority has relied upon the judgment of Honble Supreme Court in case of CCE, Nagpur Vs. M/s Shree Baidyanath Ayurved Bhavan Ltd. 2009 (237) E.L.T. 225 (S.C.) to state that the product in question does not satisfy the common parlance test. We find that the ratio of said judgment is not applicable as in the said case, the product Lal Dant Manjan was known as toilet preparation in common parlance and not as Ayurvedic medicine. Whereas in the present case the facts are entirely different as the Appellant has sold the goods as Homeopathic medicine and it is known as Homeopathic medicine in the common parlance. Even as apparent from facts the label of the product clearly shows the product as Homeopathic medicine, its content and usage. It also says that it should be left overnight. We are of the view that when the product is being sold as Homeopathic medicine and known as homeopathic medicine in the market the goods pass test of common parlance test as Homeopathic medicine. In the light of our observations made in preceding paras, we hold that the reliance placed upon the judgment of Shree Baidyanth case supra is misplaced as the facts are entirely different. Further the adjudicating authority reliance upon the order of the Tribunal in case of Naturence Research Labs (P) LTD. Vs. CCE, DELHI-II. 2003 (154) E.L.T. 672 (Tri. - Del.) is not correct as in said case the product Forest Flower was sold as nourishment to the scalp and hair roots as per the matter mentioned on the packing and it also helped control hair loss and prevents scalp infection, encourages luxurious growth of hair whereas in the present case the Drug/ licensing Authorities and even the Honble High Court, the Vat authorities and the medical practitioners all have certified the product to be falling under the category of schedule K as Drug and even the product is sold as medicine as known as medicine in common parlance. The judgment of Alpine Industries 2003 (152) E.L.T. 16 (S.C.) as relied upon by the revenue is also not applicable as in the said case the drug licence obtained by the assessee under the Drugs and Cosmetics Act, 1940, itself mentioned that it is a licence for ointment and cream for external application as a non-pharmacopoeia item whereas in the present case the product is registered as Homeoptahic Medicine by the Additional Director, Indian Medicine and Homeopathy Department, Government of Andhra Pradesh. Even the Honble High Court of Andhra Pradesh held the product to be falling under the category of Drug and Medicine and is sold as medicine. The ratio of judgment in case of CCE Vs. ZANDU PHARMACEUTICAL WORKS LTD. 2006 (204) E.L.T. 18 (S.C.) is also not applicable as the product label clearly shows the product as Homeopathic medicine. The Judgment of Honble Apex Court in case of Sujanil Chemco Industries Vs. CCE, Pune 2005 (181) ELT 206 (SC) and Tribunal order in case of Bakson Homeo Pharmacy (P) Ltd. Vs. CCE, New Delhi 2001 (136) ELT 485 (TR- DEL) are absolutely applicable to the present case in view of our above findings and we do not find any reason to differ with those decisions.