IMPORTANT POINT
It is a settled law that the onus or burden to show that a product fall within a particular Tariff Item is always on the revenue.

JUDGMENT

Variava, J.-In all these Appeals facts are common and the question of law is common. Therefore, all are being disposed of by this common judgment. In all these Appeals the question is whether "Banphool Oil" is classifiable as a "perfumed hair oil" or as an "Ayurvedic Medicament". It must be mentioned that prior to 28th January, 1986, the question was whether "Banphool Oil" could be classified under Tariff item 68 i.e. "Ayurvedic Medicament" or under Tariff Item 14F(ii) i.e. "Perfumed Hair Oil". After this date, the question is whether it falls under Tariff Item 3305.10 i.e. "perfumed hair oil" or 3003.30 i.e. Ayurvedic Medicament". Civil Appeal No.7610 of 1999 is against the judgment dated 24th June, 1999 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). In this case the Judicial Member took the view that Banphool Oil was classifiable as an Ayurvedic medicament whereas the Technical Member took the view that it was classifiable as a perfumed hair oil. In view of this difference, the matter was referred to a third Member who has agreed with the Judicial Member and held that Banphool Oil is classifiable as an Ayurvedic Medicament. Thus by majority, CEGAT has held that Banphool Oil is classifiable as an Ayurvedic Medicament under Tariff Item 3003.30.

2. Civil Appeals Nos. 283-284 of 2001 are against judgment of CEGAT dated 3rd April, 2000. Civil Appeal No.2640 of 2001 is against the judgment of CEGAT dated 27th July, 2000 and Civil Appeals Nos. 707-709/2003 are against the judgment of CEGAT dated 26th February, 2003. In all these matters CEGAT has followed the majority judgment dated 24th June, 1999 and held that Banphool Oil is classifiable as an Ayurvedic Medicament

3. Learned Additional Solicitor General, Mr. Raju Ramachandran pointed out that the Respondent in Civil Appeal No.7610 of 1999 had initially classified Banphool Oil as a toilet preparation. He points out that this initial classification was sought to be revised as an Ayurvedic Medicament. He submitted that this showed that even the Respondent considered their product to be a toilet preparation. He submitted that it is an admitted position that 98% of Banphool Oil consists of "til oil" and the remaining 2% are ayurvedic ingredients like amla, chandan, camphor etc. He submitted that in order to suppress the strong smell of til oil, perfumery is added. He further submitted that the cartons and labels of Banphool oil show that it is a perfumed hair oil. He submitted that it is an admitted position that Bhanphool Oil is sold across the counter and stored not just by chemists but even by ordinary grocers. He submitted that there is no evidence led in any of the matters to show that the common man uses this oil as a medicine.

4. Reliance is placed upon the case of Shree Baidyanath Ayurved Bhavan Ltd. versus Collector of Central Excise, Nagpur reported in 1996 (83) ELT 492 (SC), wherein the question was whether "Dant Manjan Lal" was an Ayurvedic Medicament or not. This Court approved the findings of the Tribunal that in interpreting statute like the Excise Act, the primary object of which is to raise revenue for which purpose various products are differently classified, resort should not be had to the scientific and technical meanings but to their popular meaning. It was held that Courts have to see what the persons who use the product understand that product to be. It was held that generally medicines are prescribed by medical practitioners and used for a limited time and not every day. It was held that as the product was not sold under a medical prescription it was not an Ayurvedic Medicament.

5. Reliance was also placed in the case of Alpine Industries versus Collector of Central Excise, New Delhi reported in (2003) 3 SCC 111. In this case the question was whether "Lip Salve" could be classifiable as a preparation for care of skin or as a medicament. Admittedly the product was mainly supplied to the Defence Department for use by military