Important point
In classifying a product under Central Excise the scientific and technical meaning is not to be resorted to but rather it must be classifiable according to popular meaning attached to it by those using the product.

Judgment

All these Appeals can be disposed of by this common Judgment as the point involved is the same. The dispute is regarding classification of two items manufactured by the Appellants, namely, (1) Lal Tail; and (2) Janam Ghunti. The Tribunal has held that the product Lal Tail is classifiable under Chapter heading 33.04. As regards ‘Janam Ghunti’, the matter has been remitted back to the original authority for a fresh decision.

2. We have heard the parties. In our view, there is no infirmity in the Order of the Tribunal insofar as it remits the matter back to the original authority for a fresh decision on classification of the product ‘Janam Ghunti’. Chapter Note 1. (c) of Chapter 30 states that Chapter 30 does not apply to aqueous distillates or aqueous solutions of essential oils even though they are suitable for medicinal uses. Further, under Chapter Note 1.(d) of Chapter 30 preparations of Chapter 33 would not fall under Chapter 30 even if they have therapeutic or prophylactic properties. The Tribunal has, therefore, correctly held that if ‘Janam Ghunti’ is an aqueous distillates or aqueous solutions of essential oils it would fall under Chapter 33 even though it may have therapeutic or prophylactic properties. The Appellants have claimed that their product ‘Janam Ghunti’ is neither a distillate nor a solution but is an extraction. However, this is a matter which requires inquiry into. We approve the finding of the Tribunal that this would require looking into the process of manufacture, the composition of the product and that classification of this product cannot be decided upon without chemical test of the product. We, therefore, see no infirmity in the Order of the Tribunal to this extent and the same is upheld.

3. As regards ‘Lal Tail’, Mr. Lakshmi­kumaran has pointed out that this product has all the ingredients mentioned in Ayurvedic Text Books. The product also has a Drug Controller’s Licence. The Appellants have also filed evidence by way of prescriptions of Ayurvedic Doctors to show that their product has therapeutic or prophylactic properties and is used as a drug. As against this the Respondents have admittedly led no evidence or produced any material to show that in the market this product is not considered to be a drug.

4. The Tribunal has held against the Appellants mainly on the basis of the decision of this Court in Shree Baidyanath Ayurved Bhavan Ltd. vs. Collr. of C. Ex., Nagpur reported in 1996 (83) ELT 492 (S.C.). In this case the question was whether ‘Dunt Manjan Lal’ (Tooth powder) could be considered to be a medicament and as such eligible for exemption under Notification No. 62/78-C.E. This Court held that a medicine is ordinarily prescribed by a medical practitioner and is used for a limited time and not for every day use unless it is so prescribed to deal with a specific disease like diabetes. This Court has held that in interpreting taxing statute the scientific and technical meaning of the terms and expressions used in the tax laws is not to be resorted to and that goods are to be classifiable according to the popular meaning attached to them by those using the product. The Tribunal has held that from the Appellants literature it can be seen that ‘Lal Tail’ is used for nourishing the babies skin and that the product is not used any prescription by a medical practitioner and is not used for a limited period. The Tribunal has held that this product is used regularly but not in connection with a special ailment. On this basis, it is held that this product fails the test for a medicament.

5. Whether a product can be considered to be a medicament or not has also been considered by this Court in a number of other decisions, some of which may usefully be referred to herein.

6. In the case of Commissioner of C. Ex., Calcutta-IV vs. Pandit D.P. Sharma reported in 2003 (154) ELT 324 (SC), the question was whether ‘Himtaj Oil’ is a Ayurvedic medicament or not classifiable under sub-heading 3003.30 or a ‘perf