G. Sankaran, Member (T)

1. The captioned appeal was originally filed as a revision application before the Central Government which, under the provisions of Section 35-P of the Central Excises and Salt Act, 1944, has come as transferred proceedings to this Tribunal for disposal as if it were an appeal filed before it.

2. The issue arising for determination in the present appeal is the correct classification under the Central Excise Tariff Schedule (CET) of a product named "Sunsilk Hair Conditioner" manufactured by the appellants (hereafter referred to as Lever).

3. On 5-6-1974, Lever wrote to the Superintendent of Central Excise, Range I, Division II, Bombay that they would be manufacturing and clearing in the near future a product called "Sunsilk Hair Conditioner". According to Lever, the product was not excisable and they submitted a classification list (C.L.) for approval. There was some correspondence between the Superintendent and Lever. On 29-8-1974, the Assistant Collector rejected the request for clearance of the product on 'nil' duty gate pass and directed Lever to clear the product on payment of duty at 30% ad. vol. plus 50% of the basic duty as auxiliary duty pending receipt of test report from the Deputy Chief Chemist. It appears that the Chemical Examiner took a long time to conduct tests on the product. By his letter dated 6-5-1976, the Assistant Collector informed Lever that the test results revealed that Sunsilk Hair Conditioner was a preparation for the care of hair, classifiable under Item No. 14F(ii), CET without, however, specifying the sub-item-'a', 'b' or 'c'-of 14F(ii) under which the product fell. Lever pursued the matter in appeal. The main contention was that the product was not a hair lotion, pomade or cream within the meaning of sub-item (a) nor did it fall under sub-item (b) or (c). By his order dated 14-9-1976, the Appellate Collector set aside the Assistant Collector's order and directed a de novo adjudication observing that the non-mention of the sub-item of the Tariff showed non-application of mind and that a copy of the test report should have been made available to Lever. It may be mentioned that by this time, the residuary Item No. 68 of the CET had come into existence (in 1975) and Lever's contention was that the product fell under Item 68. On re-adjudication, the Assistant Collector, by his order dated 31-7-1977, held the product to be classifiable under Item 14F(ii) (a). The matter was again pursued in appeal. Certain affidavits were submitted in support of the contention that hair conditioner was distinct and different from hair shampoo, hair cream, hair pomade or hair lotion-two of these affidavits were from the technical employees of Lever (the Section Head in the Toilet Preparations Division and the Technical Manager in the same Division) two from consumers of the product, one from the beautician in the Hotel President Beauty Parlour and one from a dealer in cosmetics and toilet preparations. In his order dated 15-12-1978, the Appellate Collector held that the scope of Item 14F(ii) was not limited to the goods specified in (a), (b) and (c) specified thereunder but would take in any product conforming to the broad tariff description. The Appellate Collector also said that hair conditioner could be considered as lotion or even as shampoo. The appeal was rejected. It is against this order that the present appeal has been filed.

4. We have heard Shri C.S. Lodha, Counsel for Lever and Smt. Vijay Zutshi, S.D.R., for the Respondent. After the hearing was over, both sides filed written submissions.

5. Before we go into the rival submissions, it will be useful to reproduce the nomenclature of Item No. 14F(ii)

"14F. Cosmetics and toilet preparations not containing alcohol or opium, Indian hemp, or other narcotic drugs or narcotics, namely :-

(i) * * *

(ii) Preparation for the care of the hair-