ORDER

Per Jyoti Balasundaram :

The issue for determination in this appeal is the correct classification of the product "Ghrit Kumari Tel" manufactured by the appellants herein - whether under CET Sub-heading 3003.30 as ayurvedic medicine, claimed by the assessee, or under CET Sub-heading 3305.10 as perfumed hair oil, as approved by the Central Excise authorities.

2. We have heard Shri J.S. Agarwal, learned Advocate and Shri A.K. Madan, learned SDR.

3. The appellants obtained a drug licence from the State Drug Controller of Bihar on 11.10.82 and filed a classification list classifying this product under TI 68 of the Schedule to the Central Excise Tariff. The list was approved under TI 68 by the Assistant Collector vide his order dated 27.8.83, but the benefit of exemption to bulk drugs under Notification 234/82-CE dated 1.11.82 was denied. The benefit of this Notification was extended by the Collector (Appeals) vide his order dated 9.1.84, on an appeal filed by the assessee. The appeal of the Department (Appeal No. E/3353/84-D) against the extension of the benefit of the Notification was dismissed by the Tribunal vide Final Order dated 742/89-C dated 11.12.89. From 17.3.85, Tariff Item 14F, which deals with cosmetics and toilet preparations, underwent a change and the appellants were required to file a fresh classification list which they did. Vide order dated 31.7.86, the Assistant Collector classified the product in question under TI 14F w.e.f. 17.3.85, as perfumed hair oil and the Superintendent issued a duty demand for the clearances during the period from 17.3.85 to 31.3.86. The appellants filed appeals both against the approval of classification and against the demand and the Collector (Appeals) vide his orders dated 25.3.87 upheld the classification under TI 14F and the consequent demand. The assessees did not file any appeal against the above mentioned order.

4. With the change in tariff from 1.3.86, the appellants filed a classification list claiming classification of the product under CET Sub-heading 3003.30. The Assistant Collector vide order dated 11.3.87 upheld the classification under CET Sub-heading 3305.10, holding inter-alia that the product has already been held to be a perfumed hair oil as per the adjudication order dated 31.7.86 and that CET Sub-heading 3305.10 would be appropriate since the product has been advertised as "for bright, thick, dark long hair, etc." The lower appellate authority in the impugned order has confirmed the approval of the classification list under CET Sub-heading 3305.10; hence this appeal.

5. The composition of the product is as follows:

Ghrit Kumari

Gulab Phool

Mulethi

Sweat Chandan

Ambla

Chairaitta

Ratan Jot

Loh Churan

Praksheprdraya

Chandan Tel Khas Tel

Til Tel

Rusi Tel

According to the appellants, it is prepared by Ayurvedic Tel Nirman according to ayurvedic formula. However, the appellants have not substantiated their contention that the product is prepared according to ayurvedic formula. In fact, the entire argument before us proceeded on the basis that there was no requirement of preparation according to ayurvedic formula. It is seen from the Tribunal's order in the case of Amrutanjan Ltd., Madras Vs. Collector of Central Excise reported in 1991 (32) ECR 538 that the preparation of ayurvedic drug is by use of recognised ingredients in ayurvedic medicine and as per the formulae prescribed in the authoritative books. The finding of the Tribunal that ayurvedic medicines must be prepared according to formulations laid down in any authoritative text on ayurveda has not been reversed by the Hon'ble Supreme Court in the appeal against the Tribunal's order. As seen from 1995 (8) RLT 777 SC, the Tribunal's conclusion that "Amrutanjan Pain Balm Ayurvedic", was not an ayurvedic medicine because its main ingredients were Menthol IP, Camphor IP, Turpentine IP and Methyl Salicylate IP which were of a synthetic nature was set aside on the ground that these ingredients can have a use both in ayurvedic and in the western sciences and be known by different names such as pudina ka phool, pudina ka tel, ajwan ka phool, turpentine ka tel and winter green tel, and since they were known to ayurveda, their use in the making of the balm did not, by itself, make the balm a non-ayurvedic product.

5.1 In the case of Naturelle Health Products P. Ltd. Vs. CCE, Hyderabad reported in 1995 (81) ELT 578 (T), the Tribunal held that Vicks cough drops and throat drops not being manufactured in accordance with formula prescribed in texts are not to be considered as exclusively ayurvedic by application of the criteria in Sec. 3 (a) of the Drugs Cosmetics Act 1940 and hence classifiable as P or P medicine under CET Sub-heading 3003.10 and not under CET Sub-heading 3003.30.

5.2 Reliance placed by the appellants on the Tribunal's order in the case of CCE, Bombay II Vs. Maneesh Pharmaceuticals P. Ltd. reported in 1997 (23) RLT 679(T) = 1998 (97) ELT 152 does not advance their case - the Tribunal held that although the formula for preparation of "Softovac", a medicament, in which the husk of isafgol is the major ingredient as such was not described in any text placed before the Bench, the relationship of the various ingredients with each other has been narrated therein and suggestion has been made for use of a particular ingredient to reduce the harmful side effect of the other ingredients and in these circumstances, the absence of a specific formula was held not to be material. In the present case, no such evidence has been adduced by the appellants before us. We also find that the Tribunal's decision in the Naturelle Health Products case supra was not brought to the notice of the Bench, which decided the Maneesh Pharmaceuticals case.

5.3 Since the appellants have not been able to show that the product in dispute in this case is prepared in accordance with any formula prescribed in ayurvedic texts, following the ratio of the above cited judgements, we hold that the product is not an ayurvedic medicine falling under CET Sub-heading 3003.30.

6. Having ruled out classification as ayurvedic medicine, let us now determine where the product would fall for classification. The product is one for care of the hair, even as per the appellants' own description in advertisements as "for bright, thick, dark long hair, etc." It is a hair oil which has a pleasant, fragrant odour. Hence, it has been rightly treated as a perfumed hair oil and by virtue of Note 6 to Chapter 33 of the Schedule to the CETA 1985, it has correctly been held to fall under CET Sub-heading 3305.10.

7. In the result, we hold that the product in dispute is classifiable under CET Sub-heading 3305.10, uphold the impugned order and reject the appeal.