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XI. The allegation made in the show cause notice that the drug is a preparation for care of skin is not correct.

XII. Test report describing the product as a preparation for the care of skin was not conclusive and the findings of the Assistant Collector and the Appellate Collector are perverse.

5. Shri Durghayya, the learned SDR opposing the arugments and supporting the impugned order submitted that the tariff has to be read with the explanation and that 14F covered skin goods and skin tonics. In the instant case the product is a preparation for care of skin and it is used for massage only. Answering an objection that this was not a ground raised by the lower authorities the learned SDR submitted that a new ground may be taken on the basis of existing records and relied on a judgment in the case of Collector of Central Excise v. United Paper Products [reported in 1988 (37) E.L.T 258 (Tri.)]. He submitted that massage oil takes care of the skin and aruged that a drug too can be a tonic as it contains vitamins which have the function of a tonic. Shri Durghayya referred to the tariff entry and submitted that the tariff item is specific to preparations for the care of skin. Arguing that even if the product contains vitamins it is not necessarily a medicine, Shri Durghayya relied on a judgment of the Bombay High Court in Glindia Ltd. v. Union of India [1988 (36) E.L.T. 479, Bombay]. He submitted that although the appellants produced evidence to show that it is a medicine and is sold in Chemist's shops there is no proof of it that it was not sold by general merchants. Referring to the certificate given by the Doctor, Shri Durghayya argued that this certificate or even a few more like that do not establish the nature of the goods. Referring the "Product Manual" filed by the appellants, Shri Durghayya submitted that this is a document prepared by the appellants themselves and there is no sanction to it by any authorised body. He finally pleaded that the product is primarily a massage oil and may be having marginal medicinal properties. Even so in view of the explanation II to 14F, it is classifiable under this item.

13. The certificate given by Doctor Ena Poddar bears reproduction because it is an expression of hope rather than a testimonial:

"I am prescribing AD Massage Oil Forte for babies with the hope that it might prevent Vitamin A & D deficiency and infection of the skin; and also protect...(illegible)."

It also shows that the massage oil is used for care of the skin.

14. The certificate of Dr. Ms Arti Roy merely shows that AD Vitamin oil has been used in women with additional advantages. The certificates from pages 177 to 185 (5 in all) show that those Doctors prescribe the product. The first 3 are "To whom it may concern". The certificate at page 187 shows that the Doctor is a "regular prescriber of AD Vitamin Massage Oil for babies for natural gorwth and vitality".

15. On page 189 is a certificate from Shri J.C. Roy, presumably a doctor. In this he says that "I am satisfied with AD Oil [AD Vitamin Massage (sic) forte] of M/s. Sunny Industries (P) Ltd. Calcutta. I always advise this massage (sic) oil for my paediatric patients". This certificate expresses the Doctor's satisfaction and advises the use of the massage oil. We take note that in this certificate the learned Doctor has cut out the word which appears to be "prescribe" and inserted the word "advise" in its place. The next two certificates on pages 191 and 193 show that the doctors prescribe it for vigour of the babies and children and for growth and increase of vitality of the babies.

 

SUGGESTED DETAILING
 Doctor,        Regards from Sunny Industries and thanks for your everlast-
               ing patronage of-our AD VITAMIN MASSAGE OIL-
               FORTE.
Doctor,        The only truely medicated brand of Massage oil available in
               the market is our Advitamin Massage Oil-Forte.
Doctor,        Advitamin Massage Oil is a traditional massage oil enriched
               with essential Vitamins for use in all cases of Vitamin A & D
               deficiency. Thus, the therapeutic advantages of Vitamin 'A',
               Vitamin 'D' and Natural Vitamin 'E' are available through
               massage for infants and children.
Doctor,        The most important point of Advitamin Massage Oil-Forte is
               that it is absolutely free from Mineral oil such as Liquid Paraf-
               fin.
               And that is why, Advitamin Massage Oil-Forte is the only
               brand or its kind, which is therapeutically safe for infants and
               children.
Doctor,        The comprehensive formulation of Vitamin 'A', Vitamin 'D'
               & Natural Vitamin 'E' in the oil vehicle, credits Advitamin
               Massage Oil-Forte as the FIRST CHOICE for its purely
               therapeutic value, which has not been reached by any of its
               competitors.
Doctor,        Moreover, Advitamin Massage OilForte is readily accept-
               able to infants and children.
Finally,       Doctor, Advitamin Massage Oil is backed by more than 36
               years of best expertise in this field by the pioneer in mas-
               sotherapy, Sunny Industries and your never-ending patronage
               since then.
Doctor,        Advitamin Massage Oil is truely a combination of medical ac-
               ceptance since 36 years and the service towards medical
               profession since 1949.
Administration: BABIES: Once a day after discharge from the Nursery, and
                         half hour before bath.