P. Karthikeyan : Appeal No. E/325/2005 of Revenue arises before us against an Order-in-Appeal No. 6/2005 (M-I) dated 18.01.2005 passed by the Commissioner (Appeals) which vacated an order of the original authority, passed in terms of the remand directions of this Tribunal. The issue involved is the correct classification of a product named 'Face to Face' (FTF, for short) a cream/lotion manufactured by M/s. Dollar Company Private Ltd. The assessee claims the product to be a medicament used for treating skin diseases. As an ayurvedic medicine, the item falls under Chapter 3003.30 of the Central Excise Tariff Act. The department is of the view that the subject product is a cosmetic falling under CSH 3304. The original authority had found that 'Face to Face' was a cosmetic and confirmed duty demand of (i) Rs. 71,86,935/- for the period 10.01.94 to 30.09.97 and (ii) Rs. 75,66,898/- for the period 10/97 to 03/03.

2. Appeal No. E/1018/2000 is filed by the Revenue against Order-in-Appeal No. 54/2000 (M-I) dated 10.04.2000 passed by the Commissioner of Central Excise (Appeals), Chennai.

3. Heard both sides.

Appeal No. E/325/05

4. The original authority had decided that the impugned product was a cosmetic falling under CSH 3304 of the Central Excise Tariff. In the impugned order, the Commissioner (Appeals) examined the classification in the light of the following observations in the remand order of the Tribunal in F.No. 898/03 dated 04.07.2003.

(a) A medicine is that which is prescribed by a medical practitioner.

(b) A medicine is that which is used for a limited period of time (unless it has to be used everyday like in the case of diabetics).

(c) Common perception is relevant whereas the existence or otherwise of a drug license may not be relevant.

(d) Mere fact that some ingredients were mentioned in the authoritative text books on Ayurveda would not make the product a medicament.

(e) The Chapter notes of Chapter 30 and Chapter 33 of the CETA'85 clarified that products would remain classified under chapter 33 even if they had contained subsidiary pharmaceutical or anti septic constituents or were held out as having subsidiary, curative or prophylactic value.

The Tribunal had also directed the original authority to consider the additional materials that were presented before it during hearing. The Commissioner found that the Hindu Mission Hospital, Chennai, in its report dated 24.02.2000, had indicated that clinical trials of 'Face to Face' had been started in 30 cases for treatment of Hypo pigmentation and Hyper pigmentation. The Commissioner observed that the report signed by the Medical Officer of the said hospital was obviously indicative of the impugned product having been 'prescribed' for patients affected with the said skin afflictions. The assessee had produced before the original authority certificates obtained from 143 medical practitioners of different regions in the country. They had indicated that 'Face to Face' had been prescribed by doctors for pimples/acne in 163 patients, dry skin in 113 cases, sun burn in 80 cases, leucoderma in 79 cases, bindi rash in 85 cases, hyper pigmentation in 77 cases, hypo pigmentation in 77 cases and contact dermatitis in 82 cases. From the report of the Hindu Mission Hospital and the above certificates, the Commissioner concluded that the impugned product had been 'prescribed' by them.

5. The Commissioner found that the assessee had received a license to manufacture 'Face to Face' as an ayurvedic medicine from the Drug Control Authorities of Tamil Nadu in 1998. The Chemical Examiner, Custom House, Madras, vide his report dated 22.07.94 had confirmed that the ingredients of FTF such as Bakuchi, Bauharidra, Haridra, Durva, Kachora (Sati), Musta, Yasti, Sveta Chandana, Badam Taila and Sankha Bhasma were mentioned in "Indian Materia Medica" by A.K. Nadkarni. As the ayurvedic medicine was not defined in the HSN or the Tariff, the original authority decided that classification should be governed