Suncros UVA Lotion/Gel/Hyclean Cream Classifiable As Medicaments: CESTAT

The Ahmedabad Bench of Customs Excise and Service Tax Appellate Tribunal (CESTAT) has held that Suncros UVA Lotion, Gel, and Hyclean Cream are classifiable as medicaments.

The bench of Ramesh Nair (Judicial Member) and C. L. Mahar (Technical Member) has observed that the appellant-assessee produced ample evidence, such as the ingredients used in the manufacture of UVA Lotion, Gel, and Hyclean Cream. The package of the product and label state that the product is to be sold by retail on the prescription of a registered medical practitioner only. The product can be administered by a licensed cosmetologist, dermatologist, or other qualified healthcare professional. It also states that the product is to provide comprehensive protection against UV rays that can cause skin damage, sunburn, and skin cancer.

The appellant/assessee submitted that the product 'Suncros UVA' Gel and Lotion/Hyclean Cream is correctly classified under heading No. 30049099 as 'Medicaments'. The concessional rate under Sl. No. 62 of Notification 04/2006-CE dated March 1, 2006 was available to the appellant. As per the composition of the product, it is clear that it is manufactured out of various USP/IP drugs and other chemicals, and as per the ingredient of the product in the wearing proportion, it is to provide protection against UV rays that can cause damaging skin cells, leading to sunburn or even skin cancer.

The assessee stated that the product is manufactured under a drug manufacturing license. On the package of the product, the product label clearly states that the product is to be sold by retail on the prescription of a registered medical practitioner as well. The declaration is in accordance with the requirements of Rule 96 of the Drugs and Cosmetics Rules, 1945. The product can only be administered by a licensed cosmetologist, dermatologist, or qualified healthcare professional. Therefore, the product is clearly medicinal and correctly classifiable under 3004 and not under 3304 as cosmetic.

The issue raised was whether the appellants have rightly classified the product Suncros UVA Lotion/Gel/Hyclean Cream as medicaments under Chapter Sub-Heading No. 3004 of the First Schedule to the Central Excise Tariff Act, 1985, or cosmetics under Chapter Sub-Heading No. 3304 of the First Schedule to the Central Excise Tariff Act, 1985.

The tribunal noted that if at all a product is cosmetic and if the package contains that, the same can be used only on a prescription by a medical practitioner; in such a case, no one will purchase the said product as cosmetic. Therefore, such a mention on the product is vital evidence that the product is a prima facie medicament and not a cosmetic. However, it is observed that the adjudicating authority has come to the conclusion that the product is a cosmetic classifiable under 3304 only on his own assertion and presumption based on common sense. However, as per the nature of the product, which is highly technical, a non-technical person cannot be expected to arrive at a conclusion about the classification of a product containing various drugs and chemicals.

The tribunal held that the adjudicating authority was supposed to either get the product tested or at least obtain an expert opinion from an authorized and recognized independent pharma/chemical authority before deciding the classification. Therefore, the observation of the Commissioner in the order is based on incomplete or premature material, which needs to be reconsidered. Therefore, the matter should be remanded to the adjudicating authority.

Counsel For Appellant: Anand Nainawati

Counsel For Respondent: Tara Praksah

Case Title: VVF India Limited Versus Commissioner of C.E. & S.T.-Daman

Case No.: Excise Appeal No. 10479 Of 2015

Click Here To Read The Order