ICPA Health Products (P) Ltd. Vs. Commissioner of Central Excise, Vadodara
 Insc 297 (20
N. Variava & H. K. Sema. S. N. Variava, J.
Appeals are against the Judgment of the Customs, Excise and Gold (Control)
Appellate Tribunal (for short CEGAT) dated 1st May, 1998.
stated the facts are as follows:
Appellants manufacture, amongst other things, Hexiprep, Hexiscrub (Surgiscrub)
and Haxiaque. They classified these items under Tariff Item 3003.10 and paid
duty under Notification No. 29/88- CE dated 1st March, 1988. Eight show-cause-notices were
issued to them calling upon them to show cause as to why the products should
not be classified under Tariff Item 38.08. The Adjudicating Authority then
upheld the classification as proposed in the show-cause-notices.
Appeal filed by the Appellants to CEGAT has been dismissed by the impugned
three products of the Appellants were examined by the Chemical Examiner who
opined that they contained chlorhexdine gluconate solution BP, which had
therapeutic properties. The Chemical Examiner also opined that they were used
as disinfectants and were thus covered by Tariff Entry 38.08.
labels of the three products describe them as "superior surgical microbicidal
solution". It is admitted that Hexiprep is used to paint the skin as
required to disinfect the skin before surgery. It is for rapid skin
disinfection prior to surgery. Hexiaque is used as a skin disinfectant to paint
the skin before surgery and as a wound disinfectant. It is described as a
cleanser and is used for cleansing of wounds and abrasions and minor cuts. Hexiscrub
is for use on hands and forearms of Surgeons for rapid hand disinfection prior
this stage, the two Tariff Items may be set out. Tariff Item 3003.10 reads as
- Patent or proprietary medicaments, other than those medicaments which are
exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic." Tariff
Item No. 38.08 reads as follows:
- Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products
and plant-growth regulators, disinfectants and similar products." CEGAT
has held that the Appellants' products are disinfectants and are therefore
covered under Tariff Item 38.08. However, Chapter Note 1(c) of Chapter 38, in
which Tariff Item 38.08 falls, indicates that the Chapter does not apply to
"Medicaments". Chapter Note 2(i) to Chapter 30 defines
"Medicaments" as follows:
'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 :-
comprising two or more constituents which have been mixed or compounded
together for therapeutic or prophylactic uses; or
products suitable for such uses put up in measured doses or in packings for
retail sale or for use in hospitals."
if a product comprises of two or more constituents which have been mixed
together for therapeutic or prophylactic uses, then it would be a medicament.
As stated above, the Appellants' products were examined by the Chemical
Examiner who has opined that these products have therapeutic properties. Also
admittedly these products are used for disinfecting the skin prior to surgery.
As per Concise Oxford Dictionary, 9th Edition, the term
"prophylactic" would mean "intending to prevent diseases, a
preventive medicine or course of action". It is clear that the Appellants'
products are used as a cleanser for cleaning of wounds and abrasions and minor
cuts and to disinfect the skin prior to surgery. They therefore also have
products have therapeutic properties and prophylactic uses they are Medicament
falling under Chapter 30. As they fall under Chapter 30 by virtue of Note 1(c)
to Chapter 38, they do not fall within Chapter
will therefore have to be held that the products cannot be classified under
Tariff Item 38.08. In this view of the matter, the impugned Judgment cannot be
sustained and is accordingly set aside.
held that the Appellants' products will be classifiable under Tariff Item
Appeals are accordingly allowed. There will be no order as to costs.