1. The issue in dispute in the present appeal is the classification of "Tiger Balm", manufactured by the respondents herein - whether under CET Sub-heading 3003.39 as a Ayurvedic medicament, attracting duty at the rate of 8%, as claimed by the manufacturers and upheld by the Commissioner, or under GET Sub-heading 3003.10 as F or P medicaments other than those medicines which are exclusively Ayurvedic...attracting duty at the rate of 15% for certain period and 16% thereafter, as contended by the Revenue. The period in dispute is December 1996 to February 2000.
2. According to the Revenue the assessee has wrongly claimed (he-product as Ayurvedic Medicine for the reason that the product owed its origin to Chinese traditional medicine, and the formulations, brand name, logo, product goodwill etc. had been received under licence from M/s. Haw Par Healthcare Ltd. Singapore for exclusive manufacture, marketing and sale in India. The Singapore company is also the proprietary owner of the goods and in their official website, containing brief history of the beginning and origins of the product, it is stated that the Balm was developed by Hakka herbalist from China by the name of Aw Chu Kin. The website of Branding Asia.Com describes Tigerbalm as .in example of a truly Asian brand of herbal/ointment remedy passed down through generations, with its origin in the imperial courts of China. The Revenue further contends that the terms and conditions of the manufacturing agreement, clearly establishes that the process and technical knowledge of the products has been developed/acquired by M/s. Haw Par Healthcare Ltd. and the respondents have only been appointed to manufacture the products in India on behalf of the Singapore company, and the respondents nave not used the ancient Indian Medical Science of 'Ayurveda' to develop the product. The product was marketed in India in exactly the same manner in which it is marketed all over the world, in the same hexagonal shape of packing, the usage of Chinese words on the labels, and the picture of Tiger. It is advertised by the Respondent as 'Singapore ka asli Balm", which would show that the product in common/popular parlance was known as a Chinese herbal medicine. On the above grounds the department seeks classification under GET Sub-heading 3003.10 as P or P medicament other than that exclusively Ayurvedic.
4. We note that the notice issued to the respondents did not allege that the ingredients used in the product do not find mention in authoritative texts/books specified in the first schedule to the Drugs and Cosmetics Act, 1940. In fact, the ingredients are mentioned in such authoritative texts/books. The ingredients are Kapoor, Pudina Tail, Lavang Tail, Dalchini Tail, Kjuput Tail, as seen from the declaration furnished by the Respondents to the FDA authorities for manufacture under Ayurvedic licence and the ingredients find mention in authoritative texts like Sar Siddhi-Siddha Prayoga, Bhavaprakash Nighantu Chunekar Commentary etc. All the ingredients are natural products or extracted from natural products. The allegations in the notice that the product has not been manufactured using formula prescribed (SIC) in authoritative text is ill founded, in the light of the Larger Bench decision in the case of Himtaj Ayurvedic Kendra v.Commissioner and the Apex Court decision inCommissioner of Central Excise v. Sharma Chemical Works holding that the medicament can also be under a patented or proprietary formula even if the formula is not as per the Ayurvedic texts books, and further, this is not a ground on which the Commissioner's order has been challenged by the Revenue. As regards the plea that the product is known as Chinese Traditional Medicine and owes its origin to such medicine and therefore cannot be an exclusive Ayurvedic medicament, we find that this aspect has been dealt with by the Apex Court in the case of Amrutanjan Ltd. v. Collector wherein it has been held that if an article is known to Chinese ancient culture and also to Ayurveda, it does not get disqualified as ayurveda medicine for this reason. In the case of Naturalle Health Products (p) Ltd. v. Collector of C. Ex. Hyderabad , the Apex Court has held that medicated cough drops and throat drops which are patented medicine in USA and marketed there as Allopathic medicine, do not cease to be an exclusively Ayurvedic medicine if they have characteristics of such medicine. The product in dispute in the present case contains natural ingredients, all of which are mentioned in the authoritative texts on Ayurveda and are manufactured under licence to manufacture Ayurvedic Medicaments under the Drugs & Cosmetics Act. The argument of the Revenue that the product is not an Ayurvedic medicine for the reason that it is not commonly known or understood as one, is not tenable as the burden lies upon the department to show that the product is not popularly known or is not so understood, and the burden has not been discharged by the Revenue which is erroneously seeking to shift the burden to the assessee/manufacturer.
5. In the light of the above discussion, we uphold the classification of Tiger Balm under GET Sub-heading 3003.39 as Ayurvedic medicine. The impugned order is upheld and the appeal rejected.
5. Since we are upholding the order on merits i.e. on the classification of the product, we are not required to record any finding on the submission made in the cross-objection that the demand is barred by limitation and the cross-objection is thus disposed of in the light of our finding in the Revenue's appeal