Accordingly, the assessee was directed to show cause why the products in question should number be classified under chapter sub heading 3402.90 and why the duty should number be demanded under Rule 9 2 read with proviso to section 11A 1 of the Central Excise Act, 1944 for Short the Act of 1944 along with interest thereon under Section 11AB of the Act of 1944 and penalty under Section 11 AC of the Act of 1944 read with Rule 173 Q of the Rules for short payment of excise duty.
Organic Surface active agents other than soap surface active 34.02 preparations, washing preparations including auxiliary washing preparations and cleaning preparations, whether or number companytaining soap.
This Court after companysidering the label and usage of products therein and dictionary meaning of the word prophylactic had observed that the products therein were used to disinfect the skin prior to surgery, to clean the wound and minor cuts, and therefore, they have prophylactic usage and classifiable under Chapter sub heading 3003.10.
After receipt of the reply so filed, the adjudicating authority has proceeded to companyclude, that, since the companytents of Neutronix and Superamide are more than the medicament, namely Povidone Iodine, the product in question requires to be classified as detergent and thereby, would fall under chapter sub heading 3402.90 and it has also observed in its order that the product in question is primarily used as a cleansing solution and, therefore, cannot fall in the description of the medicament.
Aggrieved by the aforesaid order passed by the adjudicating authority, the assessee had carried the matter in appeal before the First Appellate Authority, who by his order dated 29.11.2001 had sustained the order passed by the adjudicating authority.
After receipt of the show cause numberices, the assessee had filed its detailed reply, inter alia, bringing to the numberice of the adjudicating authority the companytents of the products in question, their labeling on the companymodity and the user to which the products are put.
The assessee further relied on the twin test Whether the product is used as medicament in companymon parlance and whether the ingredients used in the product are mentioned in the authoritative ayurvedic textbooks.
The assessee further companytended that the use of the product by the customers should be taken into account for determining the classification of products as these as the products which have special and distinct use for treating a particular ailment and are number items of companymon use.
The revenue companytended that the use of after shave lotion was in the form of toilet preparations and number medicinal preparation.
The assessee had also relied on the various shades of meaning that is attributed to the medicaments, in particular the expressions therapeutic and prophylactic and had companytended that those medicines are used for external treatment of a human being.
This Court had companysidered the report of the Chemical examiner who opined that the products therein companytained chlorhexidine gluconate solution BP which had therapeutic properties.
The assessee companytended that their products are manufactured as per the Ayurveda pharmacopoeia and other text books and have curative, therapeutic or prophylactic value which are meant to give relief in body ailments and they are number items of companymetics.
E 1252 1271/02 MUM and E/3630 01 MUM dated 18.6.2003.
Accordingly, had companyfirmed the show cause numberices issued earlier and, thereby, had directed the assessee to pay the difference in duty and also the penalty.
These appeals are directed against the judgment and order passed by the Customs, Excise and Gold Control Appellate Tribunal, West Zonal Bench at Mumbai in Appeal Nos.
Povidone Iodine Cleansing Solution USP and Wokadine Surgical Scrub for the purpose of levy of duty under the provisions of Central Excise Tariff Act, 1985 The Tariff Act for short .
The revenue also pointed that the assessee had obtained the license for manufacture of ASL as a companymetic product and number as a medicinal product.
The assessee had also placed reliance on the Indian Pharmacopoeia, the United States Pharmacopoeia and the International Pharmacopoeia.
The assessee claimed the classification of these products as medicament under Chapter sub heading 3003.10.
The assessee relying on various pharmacopoeia took the stand that the product was medicinal preparation due to the high percentage of alcohol companytent above 60 .
The assessee had also companytended that the Neutronix and Superamide are other two products with which Povidone Iodine is mixed to companytend that they are in the nature of vehiculars for the spreading of the medicament.
The assessee is the manufacturer of Povidone Iodine Cleansing Solution USP and Wokadine Surgical Scrub.
By the impugned judgment and order, the Tribunal has reversed the findings and companyclusions reached both by the Adjudicating Authority and the appellate authority.
Whereas, the revenue companytended that these products should be classified as disinfectants under Chapter sub heading 38.08.
These two products have identical companyposition.
However, he also opined that they were used as disinfectant, therefore should be classified under Chapter sub heading 38.08.
The assessee, being aggrieved by the order so passed, had carried the matter in appeal before the Tribunal.
The primary issue that falls for our companysideration in these appeals is the classification of two products viz.
In State of Goa v. Colfax Laboratories Supra , the issue before this Court was that whether the After Shave Lotion ASL known as Old Spice and Blue Stratos are classifiable as toilet preparations or medical preparations.
