At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
By, MEMBER AND THE HONORABLE JUSTICE: RAJU
For Respondents: S.V. Nair, AC (A.R.)
1. The issue involved in the present case is that whether the product namely "Hydent-K" Potassium nitrate with fluoride medicated toothpaste manufactured by the appellant is classifiable under Chapter sub-heading 3003.10 or 3306.10 of Central Excise Tariff Act, 1985 and consequently differential duty is payable by the appellant. None appeared on behalf of the appellant however, they submitted a written submission dated 29-1-2018. They also requested to dispose of other two appeals pending with this Tribunal along with the present appeals. We take up all the appeals for disposal.
2. Shri S.V. Nair, Ld. AC (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
3. On careful [consideration] of the submission made by both sides, we find that the issue to be decided is whether the product namely "Hydent-K" toothpaste manufactured by the appellant is medicament classifiable under subheading 3003.10 or toothpaste falling under 3306.10. In this regard the appellant relied on the decision of IPCA Health Products Pvt. Ltd. which attained finality in : 2001 (135) E.L.T. 1108. Ld. Commissioner (Appeals) has distinguished this judgment on the ground that the ingredients of the product of IPCA i.e. Thermoseal Toothpaste are different from ingredients contained in the appellant's product i.e. "Hydent-K". In this regard, we find that the captioned product is made of Potassium nitrate B.P. and Sodium Monofluophosphate USP; both of these ingredients are pharmacopeia drugs. These are the main ingredients in the product. In case of product Thermoseal, the product of IPCA, the various ingredients other than active ingredients used were (1) Enamel (2) Cementum (3) Dental pulp and dentin. Comparing the ingredients in both the products, it is observed that the principal agent is Strontium Chloride and Potassium nitrate in the product Thermoseal. In "Hydent-K" only pharmacopeia drugs were used like Potassium nitrate B.P. and Sodium Monofluophosphate USP. Therefore the product "Hydent-K" is mainly based on Pharmacopeia drug whereas in Thermoseal in addition to the principal agent, other non-pharmacopeia ingredients were also used. Therefore as per the composition of the product "Hydent-K" is on a better footing than "Thermoseal" which
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has been classified as medicament in the IPCA Health Products Pvt. Ltd. case. Therefore the judgment of IPCA Health Products Pvt. Ltd. is squarely applicable in the facts of the present case. We therefore set aside the impugned order and allow the appeals.