Order No. Venkataramani, Member T ]. Both these appeals are against the same order dated passed by the Collector of Central Excise Appeals , New Delhi. Baidyanath Ayurved Bhawan B. Prior to , the Central Excise department was of the view that the product Dant Manjan Lal was not chargeable to duty because of the express language of Tariff Item E of Central Excise Tariff which was for patent or proprietary medicines other than those medicines which are exclusively Ayurvedic, Unani Sidha or Homeopathic.
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Order No. Venkataramani, Member T ]. Both these appeals are against the same order dated passed by the Collector of Central Excise Appeals , New Delhi.
Baidyanath Ayurved Bhawan B. Prior to , the Central Excise department was of the view that the product Dant Manjan Lal was not chargeable to duty because of the express language of Tariff Item E of Central Excise Tariff which was for patent or proprietary medicines other than those medicines which are exclusively Ayurvedic, Unani Sidha or Homeopathic. From , residuary Item No. Medicines other than those classified under Item E, i.
Ayurvedic medicines etc. The appellants applied for and obtained Central Excise licence for the product Dant Manjan Lal and cleared it on payment of duty under Item The Assistant Collector of Central Excise, Allahabad, by his order dated , held that Dant Manjan Lal was being used as tooth powder and it was not a drug or medicine and hence not eligible for exemption.
The Collector Appeals further observed that this point can be decided only by reference to the particular book of ayurvedic system of medicine in which the ingredients used by the appellants in the manufacture of Dant Manjan Lal and the process employed for the production of this preparation have been des.
He remanded the case with these directions to the Assistant Collector. In pursuance of this order of the Collector Appeals , the Assistant Collector again decided the issue and passed an order dated holding Dant Manjan Lal as excisable under Item 68 of Central Excise Tariff.
On an appeal against this order, the Collector Appeals in the present impugned order dated held that Dant Manjan Lal was an ayurvedic medicinal preparation which was made as per the formula pres. The product is also used as an ayurvedic medicine. It is pres.
Shri Lachman Dev then cited and relied upon the case law reported in Bom. State of Goa in which the Bombay High Court held that the definition of drug given in the Drugs and Cosmetics Act is relevant for determining its meaning in trade and that popular or commercial meaning of the term is synonymous with the meaning given in the Act. Shri Lachman Dev, therefore, contended that there were sufficient grounds for the Tribunal now to take a different view from the one expressed in its previous decision due to the changed circumstances.
He also mentioned that the same issue was pending before the Supreme Court. Shri Lachman Dev also submitted that in any case, the appellants are not liable to pay duty, as they had claimed during the proceedings before the Asstt. The learned DR also contended that there has been no change in the circumstances relating to the same product dealt with above by the previous order of the Tribunal because that order related to the period prior to Collector of Central Excise - and further submitted that the Tribunal in taking this view had followed the Supreme Court decision in the case of Commissioner of Sales Tax, Madliya Pradesh v.
Collector while remanding the case to him. The claim made in their letter of was being made for the first time for the exemption, which is much subsequent to the original adjudication of the matter by the Asstt. In respect of the appeal by the department against the impugned order of Collector Appeals , Shri Chakraborty contended that the criteria for classification for the period is totally different because the Central Excise Tariff Act, was in force at that time.
Sub-heading It may have some curative or prophylactic value, but yet, has to be classified only under sub-heading Shri Lachman Dev, the learned consultant in reply, contended when the item is included in the Drugs and Cosmetics Act, it is recognized as a medicine and by virtue of that, it will remain a medicine even for the past period. Their claim for exemption for not using power had also been verified by the department.
We have carefully considered the submissions made by the learned consultant and the learned DR. Collector of Central Excise , Patna. Paras of this decision are very relevant and are reproduced below:. The findings are fully applicable to the facts of the present case. It has been argued before us that there have been certain changed circumstances and that these should be sufficient ground for us to take a different view from the earlier decision of the Tribunal cited supra.
However, a perusal of the decision of the Tribunal supra shows that the Tribunal had applied the test of common parlance, trade understanding and judicial decisions on the subject.
Another circumstance pointed out by the appellants for a different view is the decision of the Bombay High Court in Leukoplast India Ltd. Therefore, this also cannot be considered a circumstance warranting a change in view.
As for the other argument that the affidavits of actual users have now been produced which were not before the Tribunal in its previous decisions, we find that the Tribunal had, with reference to the ingredients in the product and the various judicial pronouncements and the public understanding of the product, given a clear finding that tooth powder is an article of every day use meant for cleaning teeth as an indispensable hygiene intended to protect the teeth and preserve them in good condition and that although the manufacturers of these Dant Manjans have claimed that they are able to prevent dental decay and pyorrhoea, Alveerine, toothache, etc.
Admittedly, there is no change in the principal function of the product since the previous decision of the Tribunal. CEGAT - that judicial propriety and decorum requires that if a two-Member Bench is appraised of a decision given by a three-Member Bench, the said Bench should accept and follow the same and not embark upon to reconsider the matter even if they are inclined to take a different view.
Therefore, we are clearly bound by the previous decision of the Tribunal by a Co-ordinate Bench, more so, when this matter is stated to be also pending before the Supreme Court. In this view of the matter, the order of the Collector holding that w. However, as we have seen, the issue is squarely covered by the earlier decision of this Tribunal reported in.
We also note that the order-in-appeal dated directs the Asstt. Collector to decide the case de novo on merits. We further find that the Collector Appeals in the impugned order did not go into this aspect because on merits, he came to the conclusion that Dant Manjan Lal was an ayurvedic medicinal preparation though with effect from By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. Before confirming, please ensure that you have thoroughly read and verified the judgment.
In case of any confusion, feel free to reach out to us. Leave your message here. Log In India UK. Please log in or sign up for a free trial to access this feature. ON OFF. Sankaran, President K.
S Venkataramani, Member T D. M Vasavada, Member J. Item 21 2 of the S. Click Here. Upload brief to use the new AI search. Shree Baidyanath Ayurved Bhawan Pvt. Case Information.
We do not agree with this contention of Shree Baidyanath. The end product should not be known by its ingredients. State of Rajasthan E.
Sarin Chemicals 24 STC held that tooth powder used for cleaning the teeth is an article of cosmetics or toilet requisites. Some of them do possess some prophylactic and remedial properties but whether they do or do not possess the medicinal properties, claimed by their manufacturers, the fact remains that they are used for dental cleanliness which is an essential act of toilet". Cleaning teeth being an act of daily toilet, dentifrices produced in the form of tooth powder used for cleaning teeth would be an article of toilet as held by the Bombay High Court in the case of Commissioner of Sales Tax v.
Vicco Laboratories 22 STC Madras High Court in the case of V. Somasumdra Mudaliar v. Sarin Chemical Laboratory v. Commissioner of Sales Tax , U. AIR S. Modern dentifrices are an extension of the numerous abrasive and cleansing substances used as dentifrices in the early part of 10th century Although dentifrices have been considered dental cosmetics at first the emphasis of advertising and the awakening of the hygiene cons. Although manufacturers of dentifrices have advanced such claims in their behalf as ability to prevent dental caries decay and treatment of pyorrhoea the inexorable fact remains that the dentifrices may be expected to perform only the principal function, the cleansing of the teeth, which includes the prevention of layers of mucous, plaques that gives them an appearance of yellowness.
Dentifrices are not functionally antiseptic but in cleansing teeth, they serve as detergents for teeth and mucous membranes of the mouth since water is usually used to dispose of the dentifrice after brushing In the presence of these authoritative pronouncements, it hardly lies in the mouth of Shree Baidyanath that its product Dant Manjans which is essentially nothing but a tooth powder is a medicine or drug".
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