1. The only issue involved in the instant case is whether "Ad-vitamin Massage Oil Forte" manufactured by the appellants is classifiable under sub-heading 3003.19 of GET, 1985 as claimed by the appellants or under sub-heading 3304.00 as held by the authorities below.
2. The facts leading to the said controversy lie in a very narrow compass that is to say the appellants M/s. Sunny Industries (P) Ltd. files their classification list No. 2/86, dated 3-3-1986 claiming classification of their said product, namely, Ad-vitamin Massage Oil Forte under sub-heading 3003.19 of GET, 1985 as patent or proprietary medicine which was modified during approval by the Assistant Collector to sub-heading 3304.00 as preparation of skin on the ground that use of medicinal ingredients in the subject goods does not take it away from the purview of the above Tariff Heading.
3. The said question of classification of the subject product, namely, Ad-vitamin Massage Oil Forte stands already decided by this Tribunal against the appellants in their own case by Final Order dated 26-10-1988 and reported as Sunny Industries (P) Ltd. v. Collector of Central Excise in 1989 (39) E.L.T. 468 and according to Shri Ashok Sen, Ld. Sr. Advocate, who appeared on behalf of the appellants, the appeal is pending before the Apex Court against the said Final Order.
4. Arguing on behalf of the appellants the ld. Sr. Counsel submitted that before coming into force the provisions of the Central Excise Tariff Act, 1985 (for short CET, 1985) the subject goods, namely, Ad-vitamin Massage Oil Forte, manufactured by the appellants were classified by the Assistant Collector not as goods falling under Tariff Item 14E of the 1st Schedule to Central Excises and Salt Act, 1944 but as a cosmetic falling under Tariff Item 14F of the 1st Schedule to the said Act. However, the Central Excise Tariff was re-constituted with effect from 28-2-1986 as follows : (i) 14E of the erstwhile Tariff was renamed as TI 30.03 of the Central Excise Tariff Act, 1985.
(ii) 14F - was reconstituted as Tariff Item No. 33.04 of the Central Excise Tariff Act, 1985.
5. That on re-construction of the tariff as aforesaid the appellants submitted their classification list No. 2/86, dated 3-3-1986 claiming classification of the subject goods Ad-vitamin Massage Oil Forte (in packings of different sizes) under Heading 3003.19 of the reconstituted CET, 1985 as patent and proprietary medicine. However, after usual adjudication proceedings the Assistant Collector classified the subject product under Heading 3304.00 of CET, 1985 (earlier 14F), which was upheld on appeal by the appellants by the Collector (Appeals).
6. The ld. Counsel while admitting that the issue of classification stands already decided against the appellants by this Tribunal by its Final Order dated 26-10-1988 as reported in 1989 (39) E.L.T. 468 wherein it was held that Ad-vitamin Massage Oil Forte is classifiable after 17-3-1985 under Tariff Item 14F as consmetics and toilet preparations because as a massage oil it is for the care of skin and not under Tariff Item 14E as patent and proprietary medicine even if it contains some medicinal properties submitted that the said decision requires reconsideration.
(1) that the product is primarily a drug because it contains a drug or medicinal preparation in oil form; it is used for massage; and it prevents the ailment of rickets and treats the same and it has a Trade Mark and symbol including that it is a proprietary; (2) that the subject product was being purchased and/or manufactured under the licence granted by the Drug Control Authorities; (3) that the subject product is being tested or analysed by the Government Analyst from time to time to ascertain the true contents of the subject product as could be seen from the certificate of Government Analyst dated 25-7-1964. He also submitted that the subject product is described in the list of drugs as specified drug; (4) that Dr. Murari Mohan Mukherjee in his affidavit dated 19-7-1986 had certified that the subject product is a medicine and the same is not an item to be included in either cosmetics or toilet preparations used for the care of skin. Adding that Ad-vitamin Massage Oil Forte is highly recommended for the babies and can be used throughout the year and it is absolutely safe and free from mineral oils and is as such regularly prescribed by him for them including the patients suffering from keloids and hypertrophic scars; (5) that on the label of the subject product it is clearly mentioned that Ad-vitamin Massage Oil Forte is for growth and vigour of babies and is essential for all cases suffering from Vitamin A deficiency.
It helps as-similiation of Vitamin A by surface observation and expecially recommended for rickets, xerosis and Keratmalacia.
(6) that the product is sold as a drug and is recognised as such and referred to certain purchase orders; and (7) that what was medicine and not a cosmetic prior to the reconstitution of the present GET Act, 1985 cannot suddenly become a cosmetic or toilet preparation after its amendment.Pasteur Laboratories (P) Ltd. v. Collector of Central Excise, Calcutta as reported in 1987 (31) E.L.T. 192 (Tri.) wherein it was held that an item popularly known as drug in the market and in the medical profession cannot be classified as cosmetic or toilet preparations merely on the ground that the perfume used in the drug is same as that used in cosmetics.
(ii) G.D. Pharmaceuticals Ltd. v. Union of India, 1992 (60) E.L.T. 205 wherein the Calcutta High Court held that Boroline is an antiseptic boric ointment and is recommended to be used for preventing of infection in cases of minor cuts and minor skin injuries and, therefore, is classifiable as a drug under Tariff Item 14E of the erstwhile Central Excise Tariff and not as cosmetic;Collector of Central Excise v. Nicholas Laboratories India Ltd., 1991 (56) E.L.T. 843 wherein it was held that Melalite Cream is a medical preparations and not cosmetic or toilet preparation and, therefore, was classifiable under TI 14E of the erstwhile Central Excise Tariff upto 28-2-1986 and under sub-heading 3003.19 of CET, 1985 with effect from 28-2-1986;Collector of C. Ex., Bombay-I v. Pharmaceuticals Capsules Laboratories, Bombay, 1986 (25) E.L.T. 211 wherein it was held that Gelatine capsules, hard and empty, are classifiable a drug intermediate and therefore to be classified as drug. Since drug includes not only medicine but also other substances which are used for or in diagnosis, treatment, mitigation or prevention of diseases in human beings and in animals; and (v) Chimanlal Jaggivandas v. State of Maharashtra, AIR 1963 SC 665 wherein it was inter alia held that the definition of "drugs" is comprehensive enough to take in not only medicines but also substances intended to be used for or in the treatment of diseases of human beings or animals.
9. He also referred to the uses of Vitamin A as shown at pages 1591 and 1592 of the Book "GOODMAN and GILLMAN's". The Pharmacological Basis of Therapeutics, Sixth Edition and also at pages 751 & 752 of the Book The Pharmacopeia of the United States of America, Seventeenth Revision and pages 431, 432 and 1845 of Harrison's Principles of Internal Medicine, Ninth Edition.
10. In reply Shri Somesh Arora, ld. JDR submitted that virtually all the arguments which have been advanced in the present case by the ld.Counsel for the appellants were advanced earlier also by the ld.Counsel for the appellants in their own case that is to say Sunny Industries (P) Ltd. v. Collector of Central Excise, (supra), and the Tribunal after considering the literature, Trade opinions and the Purchase Order and various other facts of the case and the relevant case law on the point held that the subject product, namely, Ad-vitamin Massage Oil Forte is to be classified under TI 14F that is to say TI 33.04 of CET, 1985 as cosmetic and toilet preparations. He submitted that the case cited by the ld. counsel as aforesaid depends upon the facts of those cases. To wit in the case of Pasteur Laboratories (P) Ltd., (supra), the subject products were :- and after examining the composition of these products the Tribunal held that these were classifiable as drugs. Likewise, in the case of G.D.Pharmaceuticals Ltd., (supra), the goods in question were Boroline and on the basis of their composition it was held that Borohne is to be classified as a drug. In the case or Nicholas Laboratories India Ltd., (supra), the subject product was Melalite Cream and looking to the composition of the same it was held to be classifiable as a drug.
Similarly, in the case of Pharmaceutical Capsules Laboratories, Bombay, (supra), the subject product was Gelatine capsules and was found to be a chemical substance which contribute to the ultimate chemical structure of the drug. As regards the contention of the ld. Counsel for the appellants that it was a medicine and not a cosmetic prior to re-structuring of the Tariff in 1985 cannot suddenly become a cosmetic or toilet preparations after its amendment, he contended that the classification of the goods as medicine under old tariff is not conclusive of the classification of the same goods under new tariff since heading covered under both tariffs are different and new tariff incorporates rules of interpretation which was not mentioned under the old tariff and cited the case of BPL Pharmaceuticals Pvt. Ltd. v.Collector of Central Excise, Baroda, 1994 (69) E.L.T. 798. The Ld. JDR also drew our attention to Tender No. 5 (Medicine) 1984-85 appearing at pages 169-171 of the Paper Book wherein subject product Ad-vitamin Massage Oil Forte was sold as massage oil.
11. We have considered the submissions. From the earlier Final Order dated 26-10-1988 passed by this Tribunal in the case of appellants themselves as reported in 1989 (39) E.L.T. 468 [Para 4 to 27] classifying the subject product, namely, Ad-vitamin Massage Oil Forte as cosmetic and toilet preparations under Tariff Item 14F, we find that virtually all the arguments which were advanced before using this case were also advanced earlier and attention was drawn to the literature and the various certificates issued by the Doctors and the Trade opinion as could be seen from the order itself. Even the affidavit of Dr. Murari Mohan Mukherjee was filed therein also and considered. For ready reference the relevant portion [Para 4 to 27] of the said Final Order may be extracted as under [in extenso] :- 12. We have ourselves considered the submission of the Ld. Counsel for the appellants and have also gone through the case law cited at the Bar. Photo copy of the purchase orders to which our attention was drawn during the hearing virtually relates to the year 1981 to 1982 and some purchase orders also relates to the year 1984. From these purchase orders we find that the purchaser have placed the orders for Ad-vitamin Massage Oil Forte. From these purchase orders it cannot be conclusively held that under the new Tariff of 1985 the subject product is to be classified as drug for, the new Tariff as its own language and rules of interpretation as held by this Tribunal in the case of BPL Pharmaceuticals Pvt. Ltd. v. Collector of Central Excise, Baroda, 1994 (69) E.L.T. 798. Opinion given by certain persons connected with medicines was also duly considered by the Tribunal while passing the earlier order. The case law cited by the Ld. Counsel also in our consideration does not require any change in the view expressed in the earlier case of the appellants themselves, (Final Order dated 26-10-1988 as reported in 1989 (39) E.L.T. 468, as these cases were decided on the facts established therein).