The classification of Boroline as a drug or a cosmetic product depends on its chemical composition and intended use.

( 1 ) THIS appeal is directed against an order of the learned Trial Judge whereby the learned Trial Judge has been pleased to allow the writ application. The contextual facts reveal that for some time past disputes and differences were raised as regards classification of a product named 'boroline'. Dispute started as early as 1961 and continued right upto this date from time to time. The learned Trial Judge relying upon a judgment of Allahabad High Court (Abdul Mohammed and Ors. v. The State) reported in 1977 Cri. L. J. 1325, came to the conclusion that 'boroline' is essentially a drug and the newly introduced explanation to the Tariff Item 14f cannot have any bearing on the question as to whether Boroline is a drug or cosmetic product. In terms of the aforesaid Judgment, the learned Trial Judge was pleased to record that the question has been gone into in great length by and between the parties before the departmental authorities and also before this Court and strong reliance was placed and the terms of the settlement as filed in Matter No. 358 of 1962 [g. D. Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Calcutta, Orissa and Ors. ]. The terms of settlement as noted above filed on 18th January, 1983 whereby it was held that Boroline was to be assessed as patent and proprietary medicine under the Tariff Item 14e and facts depict that the Central Excise authority has levied, assessed and collected excise duty on Boroline on the basis of such classification under Tariff Item 14e.

( 2 ) MR. Roy Chowdhury, appearing for the appellants, however, strongly contended that in view of the changed statutory provisions as introduced by the Tariff Act of 1985, effected from 1st February, 1986 the question of invocation of Tariff Item 14e for the product 'boroline' does not and cannot arise. Mr. Roy Chowdhury placed strong reliance on the Chapter Notes and contended that the learned Trial Judge has not placed any reliance whatsoever on the abovenoted Chapter Notes and has gone wrong in the process. Mr. Roy Chowdhury submitted that Chapter Notes are completely different from that of the Tariff Items, be it 14e or 14f. Be it noted that Tariff Item No. 14e has introduced in Tariff Act, 1985, under Heading No. 30. 03 and 14f under 33. 04. Mr. Roy Chowdhury, however, has placed in details both the Items, but on a perusal of the same, we do not find any such change warranting a different conclusion on the matter. Basically Item No. 14e deals with patent or proprietary medicines not containing alcohol, opium, Indian hemp or other narcotic drugs or other narcotic other than those medicines which are exclusively Ayurvedic, Unani, Sidha or Homeopathic and the explanation categorically records that it includes any drug or medicinal preparation, in whatever form for use in the internal or external treatment of or for the prevention of ailments in human being or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia. Item 14f, as it stood there, has dealt with Cosmetics and Toilet preparations for the care of skin, beauty or make-up preparations, such as beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skin foods, skin tonics, etc. to give protection against skin irritants. Mr. Roy Chowdhury relying on this explanation submitted that Boroline is basically being used for protection against skin irritants. Mr. Roy Chowdhury further relied upon Chapter 33. 04 and submitted that the situation has changed by reason of the introduction of Tariff Act, 1985 and more so by reason of the inclusion of Chapter Notes, as noted above. The difference between the two being the Tariff Item No. 14f and the present Chapter 33. 04 cannot be termed to be a difference, as such, warranting a different view as was taken earlier.

( 3 ) IN that view of the matter, we are unable to record our concurrence with the submissions of Mr. Roy Chowdhu