IMPORTANT POINT
Where commodity taxation is taken up by the State authorities the Court should be guided by the manner of classification of goods which are brought to tax rather than the etymological meaning of the product in question or expert s opinion thereto.

JUDGMENT

Rajendra Babu, CJI.-In these appeals arising out of an order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal ) question raised for our consideration is whether Johnson s Prickly Heat Powder and Phipps Processed Talc are patent or proprietary medicines classifiable for the purposes of excise duty under the erstwhile tariff item 14E (as prior to 1.3.1986) and Heading 30.03 (subsequent to 1.3.1986) as claimed by the appellants or whether they are cosmetics or toilet preparations falling under the erstwhile tariff item 14F (prior to 1.3.1986) and Heading 33.04 (after 1.3.1986) as claimed by the Department.

2. The Tribunal held that the products in question are cosmetics and not medicament on the basis that boric acid, salicylic acid and zinc oxide present in the product are subsidiary pharmaceutical or antiseptic constituents and their curative and prophylactic value is subsidiary and, therefore, the product is a preparation for the care of the skin and is classifiable under tariff item 14F upto 28.2.1986 and under heading No. 33.04 from 1.3.1986 and there is no legal infirmity in the order issued under Section 37B of the Central Excise Act, 1944.

3. The relevant entries of tariff item 14F and Heading No.3303 are as follows:-

"14F. Cosmetics and toilet preparations not containing alcohol or opium, Indian hemp or other narcotic drugs or narcotics, namely:-

(i) Preparations for the care of the skin, beauty or make-up preparations and manicure or pedicure preparations, such as beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods and skin talcs, face powders, baby powders, toilet powders, talcum powders and grease paints, lipsticks, eye-shadow and eye-brow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody, sun-burn preventive preparations and sun-tan preparations, barrier creams to give protection against skin irritants, personal (body) deodorants, depilatorics.

(ii) Preparations for the care of the hair, such as : brilliantines, perfumed hair oils, hair, lotions, pomades and creams hair dyes, shampoos whether or not containing soap or organic surface active agents.

(iii) Shaving creams, whether or not containing soap or organic surface active agents.

Explanation. I.-"Alcohol", "Opium", "Indian Hemp", "Narcotic Drugs" and "Narcotics" have the meanings respectively assigned to them in section 2 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955.

Explanation II.-This Item includes cosmetics and toilet preparations whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value.

Explanation III.- this Item includes, unmixed products, only when they are in packing of a kind sold to the consumer and put up with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such value."

"33.04 : Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen and suntan preparations; manicure or pedicure preparations."

4. The case put forth before us on behalf of the appellants is that prickly heat powder contains a range of medicines and are used only for the treatment and prevention of a skin ailment known as Milaria Rubra commonly known as prickly heat; that prickly heat powders are manufactured under a Drug Licence issued under the Drug and Cosmetics Act, 1940 and have been treated as a drug and not a cosmetic by the authorities under the Drugs Act; that on a reference made by the Finance Ministry, the Drug Controller of India has opined that due to the high content of 5% boric acid in a prickly heat powder, it would be classifiable as a drug or medicament and not as cosmetics; that from 1970