Per V.K. Agrawal : The issue involved in this appeal, filed by M/s. Burman Laboratories Ltd., is whether "Keshraj Oil" manufactured by them is classifiable under Sub-heading 3003.30 of the Schedule to the Central Excise Tariff Act as an Ayurvedic medicine or under Heading 3305.10 as a perfumed hair oil.

2.1 Shri V. Lakshmi Kumaran, learned Advocate, submitted that "Keshraj Oil" is clearly identified, recognised and treated as an ayurvedic medicine and its main value is therapeutic value or prophylactic value; that the impugned product is an ayurvedic medicine containing all the ingredients specifically mentioned in the authoritative Ayurvedic Text and the ayurvedic medicinal value is the main function and not a subsidiary function; that Note 2 to Chapter 33 of the Tariff is not attracted as the labels affixed to the impugned product no where mentions that it is hair oil; that on the other hand it is clearly mentioned in the label as under:

"Dabur Keshraj Oil is a speciality of formulated Ayurvedic Cooling Oil. Its ingredients are traditionally known to cool the scalp, relive eye-strains and headaches. Antiseptic property of Dabur Keshraj Oil prevents occurrence of minor scalp infections and controls dandruff."

2.2 The learned Counsel, further, submitted that label clearly indicates that "Keshraj Oil" is an ayurvedic medicine; that the ingredients "sugandhit dravyas" used in the impugned product is made up of Eucalyptus oil and Mentha Oil which have prophylactic and therapeutic value; that the term `perfummed hair oil' used in sub-heading 3305.10 has to be given a specific connotation; that the reference is to a hair oil in which perfume is added by positive action; that, therefore, if the oil gets aroma from perfumery quality inherent in any of its constituents, it cannot be called perfumed oil. He emphasised that Heading 35.05 covers "preparations for use on the hair"; that Keshraj Oil in question is used on scalp and not on the hair; that as such the impugned product cannot be classified as a preparation for use on the hair falling under Heading 35.05.

2.3 Finally the learned Advocate mentioned that similar oils have been held to be ayurvedic medicaments. He relied upon the decision of the Larger Bench of the Tribunal in the case of Him Taj Ayurvedic Udyog Kendra vs. CCE, Allahabad 2002 (48) RLT 264 (CEGAT-LB)=RLT (L.B.-CEGAT)-2166=2002 (139) ELT 610 (T-LB) and compared the ingredients used in both the products and submitted that the Larger Bench reached the conclusion in Him Taj case that "there are ample materials made available by the appellants in support of his contention that the ingredients which had gone into the manufacture of "Himtaj oil" are only those which are specifically mentioned in the authoritative text books on Ayurveda." Reliance has also been placed on the decision in the case of Pandit D.P. Sharma vs. CCE, Calcutta, 2000 (41) RLT 443 (CEGAT).

3. Countering the arguments, Shri R.C. Sankla, learned SDR, submitted that as per Note 2 to Chapter 33, Headings 33.03 to 33.07 are applicable to the products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value;that the impugned product has been labeled and marked as 'Dabur Keshraj Oil' thereby indicating that same is meant for application on hair; that thus it is classifiable under Heading 35.05 even though it possesses any subsidiary prophylactic or curative value. He also mentioned that the decision in Him Taj case is not applicable as the Larger Bench observed in Para 36 of the decision that "a reference to the printing on the cartons and the literature contained therein would not show that the product is meant for use as a cosmetic or toilet preparations"; that the impugned product is not used for a limited period, it is not used in prescribed dosages and is not prescribed by a doctor whereas in the case of Himtaj Oil doses and time period were specified. The lear