Judgment

( 1 ) THE question which is raised for our decision in these appeals is whether the respondents products, namely, turmeric skin cream and vajradanti toothpaste and tooth powder are classifiable under Chapter 30 of the Central Excise Tariff Act or under Chapter 33 of that tariff. Chapter 30 deals with pharmaceutical products whereas Chapter 33 deals with essential oils and resinoids; perfumery cosmetics and toilet preparations. The period in question is October 1996 up to June 1997.

( 2 ) THE respondents products were initially classified as "a patent or proprietary medicine not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotics other than those medicines which are exclusively Ayurvedic, Unani, Siddha or homoeopathic" under Tariff Heading 14-E of the First Schedule to the Central Excises and Salt Act, 1944. It was also classified under Chapter 30 after coming into force of the Central Excise tariff Act, 1985 as a pharmaceutical product. By three show-cause notices dated 2/5/1997, 16/9/1997 and 27/10/1997 relating to the period between 31/10/1996 and June 1997, the appellant sought to allege that the assessees products should be really classified under Chapter 33 as a cosmetic. It was also alleged that in any event the products of the appellant could not be considered to be medicine within Tariff Sub-Heading 3003. 31. The basis of the show-cause notices was the decision of this Court in Shree Baidyanath ayurved Bhavan Ltd. v. CCE and the tests allegedly laid down in that decision for determining whether a product should be classified under chapter 33 or Chapter 30.

( 3 ) THE two tests according to the show-cause notice for determining whether a product was classifiable as a pharmaceutical product under chapter 30 of the Central Excise Tariff were (1) whether the products are being used daily and are sold without prescription by a medical practitioner; and (2) whether the products are available in general store, department/grocery shops. The Departments case in the show-cause notice is that as these two tests were not fulfilled, the product failed to come within the prescription of pharmaceutical products in Chapter 30.

( 4 ) THE mere decision of a court of law without more cannot be justification enough for changing the classification without a change in the nature of a product or a change in the use of the product, or a fresh interpretation of the tariff heading by such decision.

( 5 ) IT is not the appellants case that any of these circumstances were present in this case. Besides, the decision in Shree Baidyanath case does not lay down the test of classification as concluded by the Department at all. In that case the Tribunal had considered the evidence produced before it with regard to the sale and purchase of the product in question. It was found as a matter of fact that in common parlance the product was not described as a medicinal preparation but was described as a toilet preparation. This Court affirmed the tests laid down by the Tribunal, namely, that since the primary object of the Excise Act was to raise revenue, resort should not be had, for the purpose of classification, to the scientific and technical meaning of the terms and expressions used therein but to their popular meaning, that is to say, the meaning attached to that by those using the product.

( 6 ) THE Court also noted that the Tribunal had rejected the assessees claim in that case holding that "ordinarily a medicine is prescribed by a medical practitioner and it is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetes". It may be noted that the Court affirmed this line of reasoning of the tribunal on the ground that it was "in general agreement with it". The Court did not itself affirmatively hold that what was laid down by the Tribunal as a test to be "ordinarily" followed was invariably to be the sole test for determining whether a product is to be proved