S.C. Jain, Member (J)

1. M/s. Stamac Products, Calcutta (hereinafter called the appellants) manufacture medicines and held Licence No. L-4/21/Med/ 65(v).One of the products manufactured by them is known in the trade as Marylon Medicated Shampoo' and the appellants also describe it as such.

2. They filed a classification list classifying this product (Marylon Medicated Shampoo) 100 ml under Tariff Item 14E (as patent or proprietary medicine) Along with this classification list, the appellants also produced a carton indicating in printing that the product is 'Marylon Medicated Shampoo' and it cleans, disinfects hair and controls dandruff. The ingredients of this product namely, Benzalkonium Chloride, Cetrimide, Undecenoic Acid, D-Panthenol in a non-ionic base have also been mentioned on this carton. A sample of product was drawn vide Test Memo No. 2, dated 12-12-78 and the Chemical Examiner in his report dated 1-1-79 opined as under :

"The sample is in the form of pale yellow coloured viscous liquid with agreeable fragrance. It lathers well and has cleansing property. It is free from alcohol and other narcotic drugs. It has the composition of synthetic detergent based shampoo containing chemicals having antiseptic property."

On the basis of this test report and in view of the definition of the term 'Toilet Preparations' as given in Section 2(k) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 which lays down that any preparation which is intended for use in the toilet of the human body or in perfuming apparel of any description or any substance intended to cleanse, improve or alter the complexion, of the skin, hair or teeth, (containing) deodorants and perfumes is a toilet preparation, the Assistant Collector concerned classified this product under T.C. 14F(ii)(c) and not under T.C. 14E (P or P Medicine).

3.Aggrieved with the said order passed by the Assistant Collector, the appellants filed an appeal before the Appellate Collector of Central Excise Calcutta, who by his order-in-appeal NO.1136/Cal/81, dated 11-8 81 confirmed the findings of the assistant collector classifying this product under T.I. (c) and rejected the appeal filed by the appellants

4. Not satisfied with the said order passed by the Appellate Collector, Central Excise, Calcutta, the appellants filed a Revision Application under Section 36 of the Central Excises and Salt Act, 1944 before the Govt. of India, Ministry of Finance (Department of Revenue) New Delhi, which now stands transferred to this Tribunal under Section 35P(2) of the Central Excises and Salt Act, 1944, to be heard as an appeal.

5. We have heard Shri B.M. Mitra, Advocate along with Shri D R. Basu, Advocate for the appellants and Mrs. V. Zutshi, SDR, for the department and gone through the record.

6. Shri Mitra, learned Counsel for the appellants argued that the product in dispute having its trade name as 'Marylon Medicated Shampoo' is a medicinal preparation and its ingredients are pharmacopoeial in nature. Benzalkonium Chloride Solutions B.P.C. is active against gram positive and gram negative bacteria and some fungi (including yeasts and certain protozoa i.e. Trichomonas Vaginalis) as has been shown in the book Drug Evaluations 2nd Edition 1973 page 652 published by the American Medical Association- Drug Department. Its inclusion in the manufacture of the said goods is to arrest seborrhea and dermatophytic infections of the scalp caused by certain types of bacteria.

7. The second ingredient i.e. Cetrimide I.P. is a relatively non-toxic antiseptic and is active against gram positive but less effective against gram negative. It has been categorised in B.P.C. as Bactericide.

8. The third ingredient i.e. Undecenoic Acid B.P.C. is a fungicide used for the prophylaxis and treatment of superficial dermatophytosis of the scalp and other parts of the body. It has been classified as anti-fungal agent in Matindale's Extra Pharmacopoea.

9. The fourth ingredient i.e. D-Panthenol promotes general