IMPORTANT POINT
The Tribunal rightly arrived at the conclusion that the product Ad-vitamin Massage Oil Forte is not to be used for cure of skin but it takes care of skin as an oil used for massage and would be covered by heading 33.04 (Cosmetics and Toilet preparations).

JUDGMENT

Shah, J.-It is the contention of the appellant - Company that it is engaged in manufacture inter alia of Ad-vitamin Massage Oil forte (Patent or Proprietary Medicines) since 1949 on the basis of sanction accorded by the Drug Control Authorities. This preparation was brought and classified for levy of duty of Excise with effect from 1.3.1961 falling under Tariff Item No. 14-E of the First Schedule to the Central Excise and Salt Act, 1944 (hereinafter referred to as "the Act"). By order dated 26.12.1985, the Assistant Collector classified the said product under Tariff Item No. 14-F (Heading 3304.00) excisable as cosmetics goods. Collector (Appeals) also affirmed the order of the Assistant Collector by order dated 29.4.1986. Against that order, appellant preferred appeal No. E-2226/86-C before the Customs, Excise and Gold (Control) Appellate Tribunal ("Tribunal" for short) which was also dismissed by order dated 26.10.1988. Aggrieved thereby, appellant filed Civil Appeal No. 138 of 1989 before this Court.

2. In the meanwhile, the Central Excise Tariff was reconstituted with effect from 28.2.1986 as follows :-

(i) 14E is equivalent to T.I. 30.03 of

the Central Excise Tariff Act,

1985. (Medicaments)

(ii) 14-F is equivalent to Tariff Item

No. 33.04 of the Central Excise

Tariff Act,1985.(Cosmetic Goods).

3. On re-construction of the tariff as aforesaid, the appellant submitted its classification list No. 2/86 dated 3.3.1986 claiming classification of its product under heading 3003.19 as patent and proprietary medicine. Upon receipt thereof, the Assistant Collector issued notice to the appellant to show cause as to why the product should not be classified under sub-heading No. 3304.00 in view of the change of Tariff description after 1985 budget. Being not satisfied with reply of the appellant, the Assistant Collector modified the classified of the said product from Chapter 30 to Chapter 33 and approved classification heading 3304.00. Appeals filed by the appellants before the Collector (Appeals) and the Tribunal were also dismissed.

4. The Tribunal observed that the vitamins are added in several cosmetic preparations, skin care lotion etc. but mere addition of vitamins would not render the product as a drug. The product has to be judged entirely in the light of the words in tariff and not with reference to the licence under the Drug Control Act. After detailed scrutiny of the documents filed by the appellant and the contentions raised by the parties, the Tribunal arrived at the conclusion that the classification done by the authorities below under sub-heading 3304.00 is correct and the product in question is clearly a massage oil, intended for care of the skin but possibly having some marginal medicinal properties.

5. Aggrieved by the order of the Tribunal, the appellant has preferred Civil Appeal No. 4589 of 1995.

6. It is contended by the learned counsel for the appellant that the product Ad-vitamin massage Oil Forte was considered as medicine and it would be covered under heading 3003.19 as patent and proprietary medicine. It is submitted that the product is primarily a drug. This is because :-

(i) It contains a drug or medicinal preparation in Oil form;

(ii) It is used for massage;

(iii) It prevents the ailment or rickets and treats the same;

(iv) It has a trade mark and symbol including that it is a proprietary.

7. The question that arises for consideration in these appeals is- whether the product in question can be classified as a cosmetics and toilet preparation falling under Tariff Item 33.04 or as patent or proprietary medicine under Tariff Item No. 30.037.

8. For this purpose, we would refer to the relevant part of tariff entries as under :-

Old Tariff Entries :-

Item No. 14E-Patent or Proprietary Medicines.

Item No. Tariff Description Rate of Duty

14E Patent or Proprietary Twelve and a