ORDER D.C. Mandal, Member (T)
1. The issue to be decided in this case is whether the two products, viz. Vicks VapoRub and Vicks Inhaler, manufactured by the appellants are "Medicaments, including those used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic system" falling under Heading 3003.30 of the Schedule to the Central Excise Tariff Act, 1985 or these are patent or prcprietory medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic; - "Others" falling under Tariff Heading 3003.19.
2. The appellants filed a revised classification list for these products under Tariff Heading 3003.30 - "Medicaments including those used in Ayurvedic system", in supersession of their earlier classification lists Nos. 221/85-86 and 181/85-86. Prior to 15-4-1986, they claimed classification of the said products under Heading 3003.19 as "Patent or proprietory medicines-Others". The basis of this revised classification list was that the Directorate General of Technical Development had approved those preparations as Ayurvedic in their letter No. D & P2(436)/84, dated 6-9-1984. In his Order-in-Original No. C. No. V/30/17/6/86 Vc, dated 10-6-1986, the Assistant Collector of Central Excise, Anti-evation, Hyderabad observed that there was no change in the manufacturing process of those products and the registration of those products under the caption of' Ayurvedic preparation could not be a basis for classification of the goods for the purpose of Central Excise duty. He also observed that the appellants could not produce any well-known Ayurvedic pharmacopoeial book to show that the products conformed to known Ayurvedic medi-carttients. He also observed that some of the raw materials used by them, viz. Paraffin, Camphor, Turpentine Oil, Menthol, Nilgiri Tel (Eucalyptus oil) etc. were known to various pharmacopoeas, and they did not become Ayurvedic substance just because an equivalent Hindi name was written on the cover of the products. Accordingly, the Assistant Collector rejected the request for classification of the two products under Heading 3003.30. The Collector (Appeals), Central Excise, Madras, before whom an appeal was filed against the order of the Assistant Collector, has rejected the appeal. Hence the present appeal before this Tribunal.
3. Although in the Appeal Memorandum the appellants raised the ground of denial of natural justice, vide ground "B" of the Grounds of Appeal in the said Appeal Memorandum, the learned advocate Shri Lakshmikumaran gave up that ground at the beginning of the hearing before us and said that he would argue on merits of the appeal for a decision on merits of the case.
4. Arguing for the appellants Shri Lakshmikumaran first drew our attention to the definition of Ayurveda as given at pages 16, 17 and 18 of the Paper Book filed by the appellants. He has also drawn our attention to the Introductory Chapter in the Ayurvedic Formulary of India, Part I, First Edition, published by the Government of India, Ministry of Health and Family Planning, Department of Health, a photo copy of which has been submitted by him. Drawing our attention to page 18 of the Paper Book, the learned Advocate has stated that selection of drug in Ayurveda is based on the properties of the individual ingredients which are described in the Ayurvedic literature as Rasa, Guna, Virya and Vipaka. These cover the pharmacological and pharmaceutical properties of the individual constituents. Ayurveda makes use of these properties judiciously so that the formulation which may contain a number of individual ingredients is optimally balanced to elicit the therapeutic effect. The following two paragraphs of the Introductory Chapter of the Ayurvedic Formulary of India deal with the nature of Ayurvedic system of medicines and some of the classical books of Ayurveda :-
"The system of Ayurveda embraces within its fold drugs of plant, animal and mineral origin, both single drugs and compounded formulations. Although Ayurveda does not Rule out any substance from being used as a potential source of medicine, presently about 1000 single drugs and 8000 compound formulations of recognised merit are in vogue. All the main classical works on Ayurveda, such as Caraka Samhita, Susruta Samhita, Astanga Sangraha and Asianga Hrdaya deal with drugs, their composition and action in addition to the other aspects of the medical system. Some of the Ayurvedic books known as Nighantugranthas like Dhanvanta-raiighantu, Kaiyadevanighantu, Bhavaprakasanighantu, Rajanighantu, etc., deal mainly with single drugs, describing their habitat characteristics and therapeutic action. Ayurvedic compound formulations are divided into two groups viz. (1) Kasthausadhi (predominantly plant drugs) and (2) Rasausadhi (Predominantly metals and minerals).
There are many authentic books on both the groups of compound formulations. While Sarngadhara samhita, Cakradatta, Bhaisajya ratnavali, Sahasrayogam, Bharat Bhaisajya Ratnakara, etc. deal with both the groups of formulations, like Rasendra Sarasangraha, Rasaratna Samuccaya, Rasaprakasa Sudhakara, Ayurvoda prakasa, Rasatarangini, Rasayogasagara etc. deal only with Rasausadhi group of formulations."
The learned advocate has argued that the appellants were registered by the Directorate General of Technical Development vide letter No. D & P/2(436)/84/3892, dated 6-9-1984. as an industrial unit and the said Directorate approved the following Ayurvedic preparations, viz., (i) Ayur-vodic Digestive Aid Tablets, (ii) Ayurvedic Nasal Decongestant Inhaler, (iii) Ayurvedic Headache Relief Inhaler, (iv) Ayurvedic pain relieving ointment, (v) Ayurvedic Vaporub Decongestant Vapourising Ointment and (vi) Ayurvedic Anti-Itch Ointment under Registration No. DGTD/HQ/ iVS-15/R-l3727/C-29/SE/. DGTD has accepted these preparations as Ayurvedic medicines. Out of these six medicines, Ayurvedic Vaporub Decongostant Vapourising Ointment (i.e. Vicks VapoRub) and Ayurvedic Nasal Decongestant Inhaler (i.e. Vicks Inhaler) are two products in dispute In this case. He has also argued that according to the judgment of Bombay High Court in the case of Bombay Chemicals Private Limited v. Union of India and 14 Others, reported in 1982 ELT 171 (Bom.), Customs authorities are bound by the certificate issued by the DGTD and cannot ignore or by pass it. In the present case, DGTD has approved these medicines as Ayurvedic preparations and the Customs authorities cannot take a different view. Medicines are also prepared in accordance with the condi-tions of the licence granted by the Competent authority of Andhra Pradesh, vide licence No. 232-Ayurveda, dated 23-7-1985. In the said "licence to manufacture for sale of Ayurvedic Drugs" Appellants' Vicks VapoRub and Vicks Inhaler were categorised as Ayurvedic medicines. According to the provisions of Section 33~EEC(c) of the Drugs and Cosmetics Act, 1940, no person shall manufacture for sale or for distribution any Ayur-vedic, Siddha and Unani drugs except under and in accordance with the conditions of the licence issued by the prescribed authority. In view of this statutory provisions, the appellants obtained licence for manufacturing these Ayurvedic medicines. However, as held by this Tribunal in the case of Shree Baidyanath Ayurved Bhawan Limited, Patna v. Collector of Central Excise, Patna, reported in 1985 (6) ETR 265, the defintion of Ayurvedic: medicines as laid down in Section 3 of the Drugs and Cosmetics Act cannot determine the classification for the purpose of Central Excise duty. In the said decision, the Tribunal laid down two tests for accepting a drug or medicine as Ayurvedic drug or medicme. One test is that the ingredients of the medicament in question shall find mention in any prescribed books in the Ayurvedic system of medicines. The second test is that the medicine or drug must be understood as Ayur-vedic medicine or drug in the common parlance. All the ingredients of the two drugs "Vicks VapoRub" and "Vicks Inhaler" are mentioned in the authoritative books on Ayurvedic medicines. According to the raho of the Tribunal's decision, Ayurvedic medicines for the purpose of classifi-cation for Central Excise duty need not be manufactured strictly according to the formula described in such authoritative book. It is sufficient if all the ingredients are mentioned in the authoritative book of Ayurvedin medicines. The formulations of Vicks VapoRub and Vicks Inhaler are noted in the recognised books of Ayurveda. The learned Advocate has argued that in common parlance Vicks VapoRub and Vicks Inhaler arc known as Ayurvedic medicines. To substantiate his arguments, he has drawn our attention to the extracts from the authoritative books on ayurvedic medicines vide Pages 92 to 146 of the Paper Book filed by the appellants, the opinions of Ayurvedic Doctors at pages 75 to 79 of the Paper Book, Certificates of consumers placed at pages 81 to 83 and certificates of retail sellers of Ayurvedic Drugs at pages 85 to 87 of the Paper Book. He has stated that all these documents were submitted before the Collector of Central Excise (Appeals), but instead of consideriong the same he has wrongly observed that "even at the appeal stage there was was no averment made by the appellants as to how their products which have all along been classified as other than Ayurvedic medicines have become Ayurvedic medicine with effect from that very date". He has argued that both the tests laid down by the Tribunal in the case of Snree Baidyanath Ayurved Bhawan are satisfied by these two products of the appellants. He has also argued that Ayurvedic medicines "Amrutanjan" which are not manufactured according to the ingredients and quantit as prescribed in the ancient Ayurvedic book, are being allowed the exemption. He has, therefore, submitted that the exemption available to Ayurvedic medicines should be allowed to Vicks VapoRub and Vicks Inhaler.
5. The gists of the arguments of Shri Chakraborty, learned J.D.R. are as follows :
(i) The definition in Section 3 of the Drugs and Cosmetics Act, 940 should determine the classification of Vicks VapoRir-and Vicks Inhaler for charging central excise duty. According to the definition in Clause (a) of the said Section, "Ayurvedic, iddha or Unani includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine specified in the First Schedule". Vicks VapoRub and Vicks Inhaler were not manu-factured exclusively in accordance with any such formulaeand and hence these two products are not Ayurvedic medicines. Accordingly, they cannot be classified under Tariff Heading 3003.30 as claimed by the appellants, but they should be classified under heading 3003.19 as patent or proprietory medicine, other than those which are exclusively Ayurvedic, Siddha, Unani, Homoeopathic or Biochemic - Others. "Manu-factured exclusively in accordance with the formula" means that the ingredients, the quantity of ingredients and the process of manufacture should be according to the formulae described in the authoritative books of Ayurvedic system of medicine specified in the First Schedule to the Drugs and Cosmetics Act. Page 3k of the Paper Book filed by the appellants describe the process of manufacture of Vicks VapoRub in the Ayurvedic Book "Rasatantrasara Siddha Prayog Samgraha, Part I". The ingredients mentioned therein are Vaselin, Parafin, Camphor, Peeperment Oil, Thaimol (Ajowan Oil), Eucalyptus oil (Nilgiritail) and Cinamon Oil (Dalchini Oil). At page 69 of the said Paper Book are the ingredients of Ayurvedic Vapo-Rub Decongestant Vapourising Ointment. These are Pudine ke phool, Karpur, Thaimol (Ajowan ke phool), Sarala drava, Nilgiri tail, jatiphal tail and ointment base. The ingredients given in the above two formulae do not tally. Sarala Drava and jatiphal ' tail do not figure in the classical Ayurvedic Book at page ,3k of the Paper Book. On the other hand, Dal chini oil is not found in the formulae do Vicks VapoRub at page 69 of the Paper Book. Therefore, the appellants' Vicks VapoRub is not manufactured according to the formula in the Ayurvedic classical book. The composition of the appellants' Ayurvedic Nasal Decongestant Inhaler (Vicks Inhaler) as given at page 68 of the Paper Book is Pudina ke phool 0.38 G, Karpur 0.38G, Banafshah 0.11G and Sarala Drava 0.43G in an Inhaler of 1 ml. At Pages 95, 96 and 98 of the Paper Book there is no real formula prescribed for the Inhaler in the classical book in Ayurveda.
(ii) Classification of these two products in dispute should not be decided according to the popular parlance. Popular parlance Rule should not be followed in all cases as held by Bombay High Court in the case of Chemicals and Fibres India Ltd. v. Union of India and Ors., reported in 1982 ELT 917 (Bom.). The certificates of the Doctors, consumers and retail sellers, as at pages 75-80, 81-83 and 85-87 of the Paper Book relate to Vicks VapoRub. There is no such certificates for Vicks Inhaler. So, Vicks Inhaler cannot be said to be Ayurvedic product by any means.
(iii) Classification should not also be decided on the basis of the certificate of Directorate General of Technical Development. This certificate is no proof that these two products are Ayur-vedic medicines. Nor the licence to manufacture Ayurvedic Drugs can be a deciding factor for classification for duty purpose. The judgment of this Tribunal in the case of Shree Baidyanath Ayurveda Bhawan did not accept such certificates for classification.
6. We have considered the records of the case and the arguments of -both sides. We find considerable force in the arguments of the learned Advocate. Similar issue regarding classification of certain products as Ayurvedic medicines was examined in great details by this Tribunal in the case of Shree Baidyanath Ayurved Bhawan Limited (Supra) on which reliance has been placed by the learned Advocate. In the said case, the products Dant manjan Lal, Dant Manjan Black, Dant Manjan White, Himalay Surma, Moti Surna, Netramrita Surma, Angimukh Churan, Atul Shaktidata, Gasol Pachak, Kasbati, Namak Sulemani, Pachakbati, Swet Parpati and Sodhi Harre were in dispute. In paragraph 115 of the decision, the Tribunal held that the word 'Ayurvedie medicine' has not been defined in Central Excise Act or Tariff and hence, the Tribunal had to resort to the common parlance test to find out whether those medicines were treated as Ayur-vedic medicines by the public. After examining the evidence placed before it the Tribunal held that Dant Manjan Lal, Dant Manjan Black and Dant Manjan White were not treated by public in the common parlance as Ayurvedic medicines, but they were treated as tooth powder. In applying the common parlance test, the Tribunal followed in that case the judgment of Allahabad High Court in the case of Commissioner of Sales-Tax v. Gram Udhyog Karyalaya [1979 (44) S.T.C. 270]. In paragraph 65 of its decision, the Tribunal has observed :
"The definitions of the terms used in one enactment cannot be imported while interpreting the terms and expressions in another enactment. The definitions are always subject to the context of a particular enactment and the object behind it. Words and phrases occurring in an Act cannot be construed according to the meaning assigned to them in other Acts which are not incorporated or referred to therein. In the case of Macbeth v. Chislet (10 A.C. 220 at page 224) the House of Lords observed :
"It would be a new terror in construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act, not incorporated or referred to, such an interpretation is given to it for the purposes of that Act alone."
In paragraph 66 of its decision the Tribunal observed that the above quoted passage was cited with approval in a Sales Tax case by the Supreme Court in the Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh [AIR 1967 S.C. 1454] and by Delhi High Court in an Excise Case, Hyderabad Asbestos Cement Products Ltd. and Anr. v. Union of India and Ors. [1980 (6) ELT 735]. Tribunal also relied on the Supreme Court decision in the case of Commissioner of Income-tax v. Taj Mahal Hotel [AIR 1972 S.C. 168] and also judgments of the Supreme Court reported in AIR 1978 S.C. 1548, AIR 1973 S.C. 78, AIR 1977 S.C. 1548 and AIR 1968 S.C. 922, for basing its decision on the common parlance. In paragraph 67 of its decision in Shree Baidyanath Ayurved Bhawan case, the Tribunal quoted the following extract from AIR 1972 S.C. 168, viz., "where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use". Popular sense means "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it". Tribunal also observed that it is the identity of the goods as understood by public conversant or familiar with the goods which determines their classification and liability to duty.
7. In the case of Commissioner of Sales-Tax v. Gram Udyog Karyalay reported in 1979 (44) S.T.C. 270, Hon'ble Allahabad High Court observed that "in common parlance, a medicine is a substance or preparation used in the treatment of diseases and must have a curative power so as to make it effective for treatment of ailments. It need not be used in the very form in which it naturally occurs. It will retain its character as a medicine even though some processing is required before it becomes fit for use by human beings or other living creatures". This has been relied upon by this Tribunal in paragraph 70 of its decision in the case of Shree Baidyanath Ayurved Bhawan Limited.
8. In Chapter Note 2 in Chapter 30 of the Central Excise Tariff Act, in has been defined that for the purpose of Heading No. 3003.30,
(i) 'Medicaments' means goods (other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within Heading No. 30.02 or 30.04 which are either :
(a) products comprising two or more constitutents which have been mixed or compounded together for therapeutic or prophylactic uses; or
(b) unmixed products suitable for such uses.
(ii) 'Patent or proprietory medicaments' means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified n a monograph, in a Pharmacopoeia, Formulary or other publications, namely :
(a) The Indian Pharmacopoeia;
(b) The International Pharmacopoeia;
(c) The National Formulary of India;
(d) The British Pharmacopoeia;
(e) The British Pharmaceutrcal Codex;
(f) The British Veterinary Codex;
(g) The United States Pharmacopoeia;
(h) The National Formulary of the U.S.A.;
(i) The Dental Formulary of the U.S.A.; and
(j) The State Pharmacopoeia of the U.S.S.R.
or which is brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, lebel, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.
However, there is no definition of Ayurvedic medicaments in the Central Excises and Salt Act or in the Central Excise Tariff. Although Ayurvedic medicines have been defined in Section 3(a) of the Drugs and Cosmetics Act, the same cannot be applied for the purpose of classifi-sation of a product for Central Excise duty under the Central Excises and Salt Act and the Central Excise Tariff Act in view of the judicial, pronouncements already indicated earlier in this order. It is now a settled principle of law that when there is no definition of any word in the relevant Statute, the word must be construed in its popular sense, i.e., the meaning as understood by the people conversant therewith.
9. In the Paper Book submitted by the appellants, they have producer1 opinions from Physicians, Certificates from consumers and certificates certificates from consumers and certificates form retail-sellers to show that in the common parlance "irks VapoRub is treated as Ayurvedic medicine. In the certificate dated 25-6-1982 given by Vaidya D.S. Antarkar, D.A.S.F. (BGM) Ayurvedaeharya, Hon. physician, M.A. Podar Hospital, Bombay, he has opined that Vicks VapoRub is an avurvedic preparation (Pages 73 and 76 of the Paper Be ok). In fas certificate at page 77 of the Paper Book, Dr. S.D. Jaiukar, Dean, Govern mert Ayurved College, Nagpur-9 has certified that Vicks VapoRub contains Ayurvedic ingredients and this product is meant for common cold and complications due to it. In his Certificate dated 20-8-1986 at Page 78 of the Paper Book, Dr. Sudhir M. Sarnant, B.A. M.S. (Bom.) has certified that Vicks product of Hindustan Richardson containing ingredients, Pudina-Ka-Phool, Ajwan-Ka-Phool, Karpur, Turpine Oil, Nilgiri-ka-tel, Jaiphal Katel and Ointment base, is a pure Ayurvedic product. At page 79 of the Paper Book is a certificate dated 26-8-1986 given by Dr. (Mrs.) Ajita S. Jadhav, B.A.M.S. (Bom.), in which she has certified that she has studied the formula of Vicks VapoRub and the same, in her opinion, is purely Ayurvedic one. She has also certified that it is used by her personally as well as her family. Appellants have submitted three certificates from consumers of Vicks VapoRub. At page 83 is a certificate dated 26-8-1986 given by Shri Hari Dass Mathur Dass Mehta and Smt. Hansaben H. Mehta, Advocates of Bombay High Court in which it is stated that to their knowledge Vicks VapoRub is an Ayurvedic product and they have been using the same for cold and cough. At pages 85 to 87 of the Paper Book, the appellants have produced three certificates dated 23-8-1986 from Pallavi Medicine Centre, Medical and General Stores, Shivaji Park, Mumbai, (2) Ayurvedic Medical and General Stores, Mahim, Bombay and (3) Patwar-dhan Brothers, Dadar, Bombay, in which these three sellers have stated that they are selling Vicks VapoRub as Ayurvedic Medicines. Revenue has not placed any material before us to prove to the contrary. This product satisfies the test of common parlance to be known as Ayurvodic medicine.
10. The appellants have produced registration certificate from the Directorate General of Technical Development which shows that the two products of the appellants, viz., "Vicks VapoRub" and "Vicks Inhaler" are Ayurvedic preparations. The licensing authority, who has granted licence to manufacture these two products, has also accented Vicks VapoRub and Vicks Inhaler as Ayurvedic medicines. Although D.G.T.D. certificate and manufacturing licence cannot be the only deciding factors to hold that the products are Ayurvedic medicines, but the categorisation made by those authorities has, in our opinion, persuasive value and the certificates issued by them cannot be totally ignored. We, however, note that Bombay High Court judgment reported in 1982 (10) ELT 171 (Bombay Chemicals Private Limited v. Union of India and 14 Others), on which the learned Advocate has placed reliance, is binding in cases where the facts are similar to those of Bombay Chemicals case. In the said case the Custom Notification dated 1-3-1968 of the Government of India, Ministry of Finance, Department of Revenue and Insurance issued under Section 25(1) of the Customs Act, 1962 provided that the exemption was available if, and only if, the importer produced a certificate from the D.G.T.D. in each case. In that background, the Hon'ble High Court held that the certificate issued by the D.G.T.D. was binding on the custom authorities. The facts are, however, different in the present case and hence the said decision is not applicable to the case before us. In the case of Shree Baidyanath Ayurved Bhawan Limited (Supra) this Tribunal has not gone by the D.G.T.D. certificate and the manufacturing licence, and the Tribunal has decided the classification on the basis of common parlance and the earlier judicial pronouncements that Dant manjans, which are tooth powders, were toilet: preparations and not medicines.
11. Shri Chakraborty has argued that the two producis in question are not exclusively Ayurvedic. They are not prepared slrictly according to the formula laid down in authentic books of Ayurvedic medicines specified in the First Schedule to the Drugs and Cosmetics Act, 1940. We have already observed that the definition laid down in Section 3(a) of the Drugs and Cosmetics Act cannot be followed for classification of goods for central excise duty. Similar argument was advanced on behalf of the Revenue in the case of Shree Baidyanath Ayurved Bhawan Limited in respect of their products Himalaya Surma, Moti Surma, Netramrita Surma, Angimukh Churan, Atul Shaktidata, Gasol Pachak, Kasbati, Namak Sulemani, Pachakbati and Sodhi Harre. It was argued for the Department in that case that those products had not been manufactured as per formula laid down in any of the specified books on Ayurveda mentioned in the First Schedule to the Drugs and Cosmetics Act, 19040 and that all those products contained some Allopathic ingredients and as such, they could not be called exclusively Ayurvedic medicines. In the said case, 'Menthol' and 'citric acid' were used in Gasol Pachak, Namak Sulemani and Agnimukh Churan, 'Borax' was used in Kashbati, Pachakbati and Sodhi Harre. Citric Acid was used in Pachakbati and Sodhi Harre. Steel was used in Atul Shaktidata. Swet Parpati contained potassium nitrate, Alum and Ammonium chloride. In the said case, the Tribunal dismissed the first argument of the learned Departmental Representative on the ground that definition of Ayurvedic medicine given in Section 3(a) of the Drugs and Cosmetics Act could not be followed for deciding the classification for central excise duty. Regarding the second contention of the Departmental Representative it was held by the Tribunal that Menthol, Citric Acid, Camphor, Iron, Alum, Borax, Potassium nitrate, Ammonium Chloride were, no doubt pharmacopoeial items, but their use in Ayurvedic preparations did not render such preparations non-ayurvedic, provided the use of these ingredients is recognised in authentic treatises on Ayurveda. Based on this principle the Tribunal held that all those products qualified for categorisation as Ayurvedic medicines and the exemption from duty was admissible in respect of those medicines. We do not find any justifiable reasons for not following this principle. The ingredients of Vicks VapoRub are Pudine ke phool, Karpur, Ajowan ke phool, Sarala drava, Nilgiri tail, Jatiphal tail and Ointment base (Parafin). The ingredients of Vicks Inhaler are Pudina ke phool, Karpur, Banafshah and Sarala drava. Learned Advocate has stated that all the ingredients of Vicks VapoRub and Vicks Inhaler are mentioned in authoritative books on Ayurvedic medicines. The Collector (Appeals) has not examined the case from this angle although extracts from such books and other materials are stated to have been submitted to him.
12. From the samples shown to us during the hearing we have seen that the manufacturers' label on the bottle of Vicks VapoRub contains the following indications :
"Vicks VapoRub decongestant vapourising ointment relieves distress of cold."
"Rub Vicks VapoRub on nose, throat, chest and back for two way relief from cold.
Within minutes it helps clear blocked nasal passages to give breathing relief and eases coughs due to colds.
It works on the skin to help soothe away muscular aches and pains due to cold."
The ingredients of the product with their quantum are also mentioned on the label. We have earlier held in paragraph 9 (Supra) that according to common parlance, Vicks VapoRub is an Ayurvedic medicine. One of the tests laid down in Shree Baidyanath Ayurved Bhawan case is thus satisfied by Vicks VapoRub. This product will merit classification under Tariff Heading "3003.30 - Medicaments including those used in the Ayur-vedic system of medicines" if all the ingredients of this product find mention in authoritative book(s) on Ayurvedic medicines. This aspect is required to be examined. The appellants have contended that extracts from the authoritative books on Ayurveda showing that all the ingredients of the product are mentioned in those books, were submitted before the Collector of Central Excise (Appeals) who has not considered the same and has not given his findings thereon. We, therefore, remand this matter to the Assistant Collector of Central Excise, Hyderabad who should examine whether all the ingredients of Vicks VapoRub are mentioned in authoritative book(s) on Ayurvedic medicines and if those are found to be so mentioned, then the appellants' product Vicks VapoRub should be classified under Tariff Heading 3003.30 of the Central Excise Tariff Act, 1985. For this purpose, the appellants should be allowed to produce materials and they should also be given opportunity of personal hearing before taking de-novo decision on this limited issue.
13. So far as Vicks Inhaler is concerned, the appellants have not filed any materials to prove the test of common parlance. They have, however, described the manufacturing process of Vicks Inhaler in paragraph 3 of the Appeal Memorandum, which is as follows :-
(a) In a clean mixing tank add Karpoor and Pudinah Ke Phool.
(b) Add to the above, Wintergreen Tel.
(c) Mix for 15 minutes till the medication is effected.
(d) Filter the complete medication.
(e) The Inhaler Vicks arc medicated by means of a filler which delivers approximately 1 cc medication.
The manufacturer's label on Vicks Inhaler describes the following indications :-
"Vicks Inhaler clears stuffy Nose Fast. Use as often as needed. Inhale medicated vapours through nostril while holding other nostril closed. Inhale deeply to make breathing feel clear and cool."
The ingredients of the product and their quantum are also mentioned on the label. They have filed photocopies of certain Slokas from the books of Ayurvedic medicines describing Nazal Inhaler device. The learned Advocate has drawn our attention to pages 95 to 98 of the Paper Book in this connection. We find from page 95 that in Bhavaprakash-II it is stated that the smell of all aromatic drugs (herbs) or chaturjata (Dalchini, Tamala Patra, large cardamom and Negkeshara) is inhaled for curing common cold, cough and hiccupps. From page 96 of the Paper Book, we find that in Wagbhatt, Uttar Sthan 20, it has been stated that inhaling the smell of Kirmani Ajowan, Airan, Wekhand, Jeera and Kalonji, tied in a small piece of cloth, cures all types of common cold. We also observe from page 98 of the Paper Book (Ashtanga Sangraha, Sutra Sthana, 19/3) that the medicine which is administered through the nasal route is called 'Nasya'. The nose is considered to be the door to the brain so that any medicine administered through the nose reaches the vital centre in the brain and thereby the complete central nervous system. Indication of Vicks Inhaler shows that it acts as a medicament. Neither of the parties before us has, however, led any evidence to show that in the common parlance Vicks Inhaler is treated or is not treated as Ayurvedic medicine. Following the ratio of this Tribunal's decision in the case of Shree Baidyanath Ayurved Bhawan Limited, we hold the view that the appellants' Vicks Inhaler should be classified under Central Excise Tariff Heading 3003.30 if it si found that in the common parlance it is known as an Ayurvedic medicine and all its ingredients are mentioned in the authoritative book(s) on Ayurvedic medicines. As in the case of Vicks VapoRub, the contention of the appellants is that they submitted before the Collector (Appeals) necessary extracts from the authoritative books on Ayurveda to show that ail the ingredients of this product are mentioned in thos books, but the Collector has not considered them at all. This being the position, we remand this matter to the Assistant Collector of Central Excise., Hyderabad, who should examine whether in the common parlance Vicks Inhaler is known as an Ayurvedic medicine and whether ail the ingredients of this product are mentioned in the authoritative book(s) on Ayurvedic medicines. For this purpose, the Assistant Collector should allow the appellants and also the Department to adduce necessary evidence and he should also give the opportunity of personal hearing to the appellants before taking de-novo decision.
14. In the light of the foregoing discussions, the impugned order is set aside and the matter is remanded to Assistant Collector for de-novo examination. He should complete the de-novo proceedings within three months from the date of receipt of this order.