IMPORTANT POINT
Composition, the product literature, the label, the character of the product and the user to which the product is put are determinative factors to decide whether a product is cosmetic or medicament.

Judgment :

A.K. Sikri, J.

The issue involved in the present appeal is as to whether Vaseline Intensive Care Heel Guard (for short, 'VHG') is to be treated as merely a skin care preparation or it is a medicament having curing properties. Based on the answer to the aforesaid question, classification of this product will be determined. If it is only a skin care preparation then VHG is classifiable under Chapter Heading 3304.00 of the First Schedule to the Central Excise Tariff Act, 1985 (for short, the 'Act'). On the other hand, if it is to be treated as a medicament, VHG would get covered under Chapter Heading 3003.10 of the First Schedule. The rate at which the excise duty is payable depends on the said classification.

2) Chapter 33 under which the Revenue wants to cover VHG pertains to 'essential oils and resinoids; perfumery, cosmetic or toilet preparations' and, therefore, 40% duty is paid. Entry 33.04 thereof, which is specifically sought to be attracted by the Revenue, reads as under:

“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”

3) If a particular product is to be covered under the aforesaid Entry, the basic trait of the said product is that it is beauty or make-up preparations and preparations for the care of the skin. Some products like sunscreen and suntan preparations; manicure or pedicure preparations are specifically included, meaning thereby they are to be treated as beauty or make-up preparations or preparations for care of the skin. At the same time, medicaments are specifically excluded therefrom. We would also like to point out here certain chapter notes of Chapter 30 which are pressed into service by the Revenue in order to claim that VHG is nothing but preparation for the care of the skin. These are chapter notes 2 and 5 and we reproduce the same as under:

“2. Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly specialized to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value.”

“5. Heading No. 33.04 applies, inter alia, to the following products : beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skinfoods, skin tonics, face powders, baby powders, toilet powders, talcum powders and grease paints, lipsticks, eyeshadow and eyebrow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants.”

4) On the other hand, as per the assessee VHG is a medicament and, therefor, it should be covered by Chapter 30. Chapter 30 deals with 'pharmaceutical products'. Entry 30.03, within which the assessee seeks to cover this product, reads as under:

“30.03 Medicaments (including veterinary medicaments”

3003.10 – Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic

3003.20 – Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems

Medicaments, including those used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems;

3003.31 – Manufactured exclusively in accordance with the formulae described in the authoritative books specified in the First Schedule to the Drugs and Cosmetics Act, 1940 (23 of 1940) or Homoeopathic Pharmacopoeia of India or the United States of America or the United Kingdom or the German Homoeopathic Pharmacopoeia, as the case may be