Per Archana Wadhwa:

The issue for examination in the present appeal is as to whether the appellant's product 'Himtaj Oil' has to be classified as Ayurvedic Medicament falling under sub-heading 3003.30 of the Central Excise Tariff Act, 1985 or the same has to be classified as 'Perfumed Hair Oil' falling under sub-heading 3305.10 of the Tariff Act.

2. Briefly stated the facts of the case are as under :

2 (a). The appellants are licensed with the Directorate of Drug Control, West Bengal since June, 1981. Himtaj Oil is one of the items mentioned in the approved list of ayurvedic medicines which the appellants are duly licensed to manufacture by the said authority. The appellants filed a C/List on 5th October, 1994 with their jurisdictional Asstt. Commr. of Central Excise claiming the classification of the product under sub-heading 3000.30 as an Ayurvedic Medicament. A show-cause notice dated 15th November, 1994 was issued to the appellants calling upon them as to why their Himtaj Oil should not be classified as Perfumed Hair Oil under sub-heading 3305.10 attracting higher rate of duty. The appellants replied to the show-cause notice and put forth various pleas and submissions. The Asstt. Commr. after considering the entire facts on record vide his order dated 2.4.96 classified the said goods as an Ayurvedic Medicament falling u/s.h. 3000.30 and approved the list accordingly. For holding so, the Asstt. Commr. relied upon a number of factors like drug licence issued by the Drug Controller; letter issued by the Superintendent of Ayurvedic Department, Sir Sundarlal Hospital, Banaras which confirmed the product to be ayurvedic medicine; study report of Institute of Post Graduate Education & Research in Ayurved, Calcutta-9 on Himtaj Oil which reveals that it is an Ayurvedic product which is found to have a 'pain relief' effect in headache & migraine and also provides relief against dandruff, the Range Officer's report from which it was seen that market enquiry was conducted with dealers, wholesalers, retailers & customers as well as Drug Houses 'Chemist & Druggist' and all the corners responded that the impugned product has been treated as Ayurvedic Medicaments; Re-testing Report of Chief Chemist, New Delhi stated that no ayurvedic perfumery chemical could be detected in the sample and the report described presence of natural perfumery and it was concluded that considering the mentioning of different ailments and method of application given on the container, there are grounds to consider the product as medicament; SSI Registration Certificate for manufacturing/processing Ayurvedic Hair Oil as per Drug Licence and the Trade Notice No. 112/Ch/33-3/CE/Cal.II/91 dated 4.10.91 issued by the Calcutta Commissionerate in the light of Apex Court's judgment in the case of C.C.E., Hyderabad Vs. Richardson Hindustan Ltd.

2 (b). The above order of the Asstt. Commr. was appealed against by the Revenue by filing an application under Section 35E of the Central Excise Act. The Commissioner (Appeals), Central Excise while disposing of the said application filed by the Revenue, the set aside order of the Asstt. Commr. and held that the product in question was a cosmetic preparation, being a perfumed hair oil and merits classification u/s.h. 3305.10. The said order of the Commissioner (Appeals) is impugned before us.

3. Dr. Samir Chakraborty, learned Advocate appearing for the appellants, submits that the original order was passed by the original adjudicating authority after taking into account the entire evidences placed on record. The said evidences have been dealt with by the Commissioner (Appeals) in a cryptic manner and there are factually incorrect observations made by the learned Appellate Authority. He submits that the tests laid down by the Hon'ble Supreme Court in various judgments stand duly satisfied in the instant case for classifying the product as 'Ayurvedic Medicine'. He submits that the appellants are holder of drug licence issued by the D