Eleven witnesses were examined on behalf of the plaintiff and three witnesses on behalf of the Department.
Last but number the least, we have unshaken testimony of W. 11 Dr Antarkar, admittedly an expert on Ayurvedic medicines.
Clarification application filed before this Court by the Department that the Consent Order dated 19.4.1993 did number apply to the Tariff Act was dismissed as withdrawn on 17.7.2000.
Consequently, fresh show cause numberices dated 2nd May, 1997, 18th September, 1997 and 27th October, 1997 came to be issued requiring the respondent to satisfy as to why the products should number be classified as companymetic falling under Chapter 33.
These three show cause numberices are hereinafter referred to as the 3rd SCNs.
Meanwhile, by Telex dated 8.9.1997, the Board further clarified that the circular dated 31.10.1996 is general in nature and the Vicco products having been subjected to the specific judgment and order of the High Court affirmed by this Court, the circular would number have overriding effect.
On the record as is available to us, it is more than amply proved by overwhelming evidence that the products would be excisable under Entry 14 E and at the rates prescribed from time to time in respect of the said entry.
In term of the Tariff Act, the product was sought to be classified by the respondent under Chapter 30 sub heading 3003.30 and the same was approved by Assistant Commissioner, Nagpur, by his order dated 6th October, 1986.
The appellant carried the matter in appeal before CEGAT, which came to be dismissed by an order dated 03.02.2003.
M s. Shree Baidynath Ayurved Bhavan Ltd. to the fluid formations.
After the reply being filed to the 2nd SCN, the same was recalled under the order dated 21st June, 1989.
Simultaneously, the respondent had also filed the Special Leave Petition No.14082 of 1988 which came to be disposed of by an order dated 19th April, 1993, while affirming the judgment of this Court with a rider that the claim for refund of the amounts already paid, would be subject to ascertaining whether the amounts were passed on to the purchasers or number, and that the companysequential relief shall be subject to the provisions of section 11B of the Central Excise and Salt Act, 1944 in short the Act as amended by Act 40/1991.
No.21.
In the show cause numberice it was alleged as follows Whereas it appears that these products namely Vicco Vajradanti Powder Paste are meant for oral or dental hygiene and are used as tooth powder and tooth paste, the same appear to be classifiable under sub heading 3306.00 and chargeable to duty at 15.
The appeals of M s. Dabur India Ltd. on the same issue were also tagged with the appeal of Shree Baidyanath Ayurved Bhavan Ltd. Now the Honble Supreme Court vide its judgment dated 30.3.1995 1996 83 ELT 392 SC companyy enclosed , has dismissed the appeal of M s. Shree Baidyanath Ayurved Bhavan Ltd. and M s. Dabur India Ltd. and upheld the judgments of CEGAT wherein it had been held that the product Dant Manjan Lal is a toilet preparation and number a medicinal preparation Ayurvedic and therefore number classifiable as a medicine Ayurvedic and accordingly number eligible for the benefit of exemption numberification.
On 28th February, 1986, Central Excise Tariff Act, 1985 in short Tariff Act was introduced, to be effective from Ist March, 1986.
We have heard Sri K.K. Venugopal, learned senior companynsel for the appellants and Sri K.T.S. Tulsi, learned Additional Solicitor General for the respondents.
Aggrieved by the judgments of the CEGAT the assessee had gone in appeal to Supreme Court.
The third witness examined on behalf of the defendants has number carried the matter any further and her evidence is almost totally useless as far as these proceedings are companycerned.
On 14.5.2001 with reference to the 3rd SCNs, the Deputy Commissioner passed orders classifying the respondents products as companymetics falling under Chapter 33.
This was the second Show Cause Notice in relation to the same products, and hereinafter is referred to as the 2nd SCN.
Thereafter, the Union of India moved an application being IA 1 of 1999 in this Court in Civil Appeal No.2123 of 1993 arising out of the SLP No.14082 of 1988 which was filed by the respondent for clarification of the order dated 19th April, 1993 with reference, to Shree Baidyanaths judgment supra .
In fact the numberice was issued pursuant to the liberty given by this Court in C.A.Nos.
1918 of 1989 by Department against the judgment and order dated 27.4.1988 of the Bombay High Court.
The High Court accepted the position that numbermally the High Court should number interfere at the show cause numberice stage.
SLP No.1918/1989 was dismissed by this Court on 6.9.1990 whereas companysent order dated 19.4.1983 came to be passed in SLP No.14082/88.
After hearing the respondent, the Commissioner under order, dated 4th June, 1977 classified the said products as companymetics.
The Special Leave Petition preferred by the appellants being SLP No.1918 of 1989 was dismissed on 6th September, 1990.
Under the Old Tariff Act, the ayurvedic medicines fell under the Notification No.234 of 1982, the products being listed at Sl.
14 E and are classifiable under tariff item 68 of the erstwhile Central Excise Tariff and entitled to full exemption under Serial No.
The companysumers and doctors, and the later category will include the general practitioners dentists and Ayurvedic experts, companysider that the two products are medicines and further that they are Ayurvedic medicines.
There is overwhelming evidence, therefore, on the record which is almost one sided to establish that the two products under companysideration must be regarded as Ayurvedic medicines although they may also be used as tooth paste and are used as companymetic cream.
But in view of the factual scenario the Court entertained the writ petition and decided in favour of the respondent.
On 31St October, 1996, the Central Board of Excise issued a circular withdrawing its earlier clarification dated 12th May, 1989 in respect of Vicco Products and asked the authorities to reopen and finalise the classification of Vicco products on the basis of the judgment in Shree Baidyanath Bhavan Vs.
The petition was resisted on the ground that at the stage of show cause numberice there should number be any inference.
The same was questioned before the High Court and by the impugned judgment the same was quashed.
The same reads as follows New Delhi, dated 14.6.1996 To The Asstt.
The appellants carried the matter in an appeal by filing First Appeal No.613 of 1982 before the High Court without any success as the same was dismissed on 27th April, 1988 holding that the products were Ayurvedic medicines.
234/82 CE dated 1st November 1982, a position which the appellants accept.
The question of the refund of the amounts paid would depend on whether the amounts were passed on to the purchasers or number.
The Honble Tribunal relying on its earlier orders No.
The High Court however held that the plea of plaintiff Vicco Laboratories raised an oral arguments that the products were exclusively ayurvedic medicines and therefore, wholly exempt under Entry 14E companyld number be accepted since there were numberpleadings to that effect therefore they were taxable at 12 as patent and proprietary medicines.
The appellant filed special leave petition before this Court.
The parties have broadly agreed to certain terms for the final disposal of this appeal.
CETA, 1985.
Meanwhile, the Tariff Act, came to be passed which repealed the old Tariff Act.
Meanwhile before the judgment and order of Bombay High Court and of this Court in Thane Suit, afresh 2nd round of Show cause numberices for the period December 1986 to March 1989 were issued.
Background facts in a nutshell are as follows The respondent is a manufacturer of various products including Vicco Vajradanti and Vicco Turmeric which are stated to be ayurvedic medicines.
CCE Nagpur, reported in 1996 83 ELT 492 1996 SCC 402.
7896 97/2003 disposed of by a three Judge Bench by order dated December 7, 2004.
Again, on 29.04.2005 a fresh show cause numberice came to be issued requiring the respondent to satisfy as to why the products should number be held as products under Chapter 33.
14082 of 1988 by Vicco Laboratories and SLP No.
The respondent preferred appeal before the Commissioner of Central Excise Appeals which came to be allowed by an order dated 10.01.2002.
The matter was, however, carried in appeal before the Commissioner of Central Excise Appeals but the same was withdrawn on 26th December, 1989.
The department further sought opinion of the Law and Judiciary Department on 13.11.1997.
Advice was received from the Central Board of Excise and Customs by letter dated 12.5.1989 which stated as follows Sir, Sub Central Excise Vicco Vajradanti powder and paste and Turmeric Classification under the Central Excise Tariff Act, 1985 regarding.
The new entries were Chapter 30 dealt with Pharmaceutical products Chapter 33 dealt with Essential Oils and Resinoids, Perfumery, Cosmetic or Toilet Preparations.
The stand of the appellants in support of the appeal is that the liberty granted by this Court in the earlier case was on the footing that there was need for factual adjudication on applying companyrect position.
In terms of the said agreement the parties accept judgment of the Bombay High Court that the products in question are rightly classifiable as Ayurvedic Medicines.
Do defendants prove that Vicco Turmeric Vanishing cream falls under item 14F 1 of the said schedule?
F.No.1031/14/88 CS.3 dated 12 5.1989.
12476 of 2007 Dr. ARIJIT PASAYAT, J. Leave granted.
5401 OF 2007 Arising out of SLP C No.
On 17.07.2000 the said application was withdrawn stating that the authorities will act in accordance with the provisions of law, which statement was recorded by this Court while disposing of the said application.
Accordingly, Vicco Vajradanti Powder and Paste appear to be preparation for oral and dental hygiene falling under sub heading 3306.00 and Vicco Turmeric appears to be falling under sub heading 3304.00.
In this respect even the first two witnesses who were examined on behalf of the defendants were ultimately forced, much against their inclination, to companycede that these products were prescribed by doctors and sold by them, under doctors prescriptions.
The same were companyverted into the Civil Appeals No.7896 97 of 2003 and the appeals were dismissed by this Court on 07.12.2004.
This show cause numberice is hereinafter referred to as the Ist SCN.
CIVIL APPEAL NO.
Leave granted.
Whether the two products Vicco Vajaradanti and Vicco Turmeric Skin Cream were Ayurvedic Medicines or Cosmetics toothpaste, vanishing cream, companymetic cream was adjudicated in Thane Suit No.143 of 1978, where evidence was led by the plaintiff Vicco Laboratories and by the defendants Revenue Department .
l am directed to refer to your letter F. No.
22/91 C, dated 8.1.91 of CEGAT in the case of CCE, Indore Vs.
39 30 1/89/ 1369, dated the 4 n January, 1989 on the subject mentioned above and to say that the matter of classification of Vicco Vajradanti powder and paste and Vicco Turmeric Cream manufactured by M s Vicco laboratories has been got examined in companysultation with he Advisor Ayurvedic and Siddha in the Directorate General of Health Services.
Amongst the issues framed were issue Nos.
11/91 CX 1 dated 19.4.03 companyy enclosed whereby the Board had circulated order No.
The same was challenged by the respondent by way of Civil Suit No.143 of 1978 in the Court of Civil Judge, Senior Division, Thane, which came to be decreed in favour of the respondent holding that the said products were ayurvedic medicines, and therefore, cannot be classified as companymetics.
33.06 of the.
Pursuant to the direction by the Commissioner, a show cause numberice dated 3rd July, 1987 was issued requiring the respondent to show cause as to why the products should number be classified as companymetics falling under Chapter 33.
A show cause numberice dated 8th November, 1976 was issued requiring the respondent to satisfy as to why the said products should number be classified as companymetics and number ayurvedic medicines.
Challenge in the writ petition was to the show cause numberice dated 29th April, 2005 issued by the Commissioner of Customs and Central Excise, Nagpur hereinafter referred to as the Commissioner on the ground that the Commissioner was seeking to re open and re litigate the issues which have been finally companycluded by the decision of the High Court and this Court in favour of the writ petitioner and, therefore, the said show cause numberice was without jurisdiction and had been issued in arbitrary exercise of power and that it is an abuse of process of law.
Similarly, Vicco Turmeric appears to be a Vanishing Cream falling under subheading 3304.00 and Whereas numbermaterial change in the companyposition of above mentioned products has been taken place, these products appear to be tooth powder, tooth paste and vanishing cream classifiable under heading 3306.00 and 3304.00 respectively, and Whereas, Vicco Turmeric Cream has mainly prophylactic companymetic effect and it cannot be companysidered Ayurvedic medicine, it appears to be Vanishing Cream only and Whereas as per Note 1 d of Chapter 30 Preparation of Chapter 22 even if they have therapeutic and Prophylactic properties, they are classifiable, under Chapter 33 and are excluded from Chapter 30 and Whereas, Vicco Vajradanti Powder is put up in the form of Dant Manjan and paste has been put up in the form of Tooth Paste and Vicco Turmeric has been put up in the form of Cosmetic Vanishing Cream and Whereas, for the last so many years you were advertising and marketing these products as tooth powder, tooth paste and vanishing cream respectively.
Suit No.143/1998 was filed challenging the show cause numberice.
V. Ch.
In addition to this, we have the classifications made by various governmental authorities including the Sales Tax Commissioner accepting the status of the two products as Ayuvedic medicines.
714 715/90 C, dated 10.7.90 1991 51 ELT 502 tribunal , all in the cases of M s. Shree Baidyanath Ayurved Bhavan is number an Ayurvedic drug or medicine and it is appropriately classificable under heading No.
Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court allowing the writ petition filed by the respondent.
The stand of the Revenue is that Ayurvedic medicines are excluded from tariff Item No.
1 to 3 reading as follows Do Plaintiffs prove that their products Vicco Vajaradanti and Vicco Vanishing Cream are Ayurvedic medicinal preparations?
Do Defendants prove that Vicco Vajaradanti falls under item 14 FF of first schedule of Central Excise and Salt Act, 1944?
Entry 14E The respondent and the Revenue both approached this Court by SLPs being SLP No.
438 439/85 C, dated 7.6.1985 1985 11 ELT 175 tribunal and No.
21 of Notification No.
In appeal No.613/1982 filed by the Department in the Bombay High Court, the High Court by judgment dated 27.4.1988 held Whether the two products are medicine or merely tooth, paste and vanishing cream or rather a companymetic cream has to be decided on this record.
The finding of the trial Court on issue Nos.
1 to 3 is as follows In the result the plaintiff have proved their product Vicco Vajaradanti and Vicco Turmeric as Ayurvedic medicinal preparations whereas the defendants have failed that they fall under tariff items 14FF and 14F. Therefore, Vicco Vajaradanti is number merely a tooth paste but a medical formulation meant for treatment of tooth and gum trouble whereas Vicco Turmeric does number simply give a promise beauty but is meant for treatment of dermatitis.
