Recently I read a judgement on ayurvedic medicine by the tribunal which has quoted exactly thirty judgments. You can imagine what a puzzle it is. It is because the central excise tariff does not define ayurvedic medicine. The result is a plethora of Supreme Court judgements, and more of high courts and tribunal judgements, in individual cases claiming to be ayurvedic medicine which attracts lower duty. The con-troversy is two fold. One is about whether it is ayurvedic or not. The other is whether it is medicine or cosmetics. Both issues get involved in the same case when it is claimed by the manufacturer that it is ayurvedic medicine whileRevenue claims that it is not ayurvedic but a cosm-etic. The distinction bet-ween medicine and cosm-etic is also not settled.
The problem is compounded because all ayurvedic preparations are not always medicines.
The purpose of writing this treatise is to suggest three definitions for ayurvedic medicine, cosmetic and drug (medicine), which should be a part of the Central Excise Tariff itself. In the absence of definition the standard followed by Revenue and Courts was to go by market parlance as in the case of hair wash above.
But market parlance is very uncertain as we can see from all the court cases. The most famous one was of Boroline.
After prolonged fight with the Department and at the High Court, finally the Supreme Court had to pronounce the last word that it was used as medicine and not cosmetic. The Supreme Court has in a rec-ent case observed that Ayurvedic, Sidha or Unani Drug have been defined in the Drugs and Cosmetics Act, 1940, as below but it has not been adopted in the Central Excise
Tariff and that is why market parlance is still to be the guide. The definition s like this.
Definitions
In this Act, unless there is anything repugnant in the subject or context, —[(a) “Ayurvedic, Siddha or Unani drug” 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;]So the best course is to adopt it by making it a part of the Central Excise Tariff.
In another case the Supreme Court has worked out the definition of cosmetic and drug as follows:“A ‘Cosmetic’ means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.”And “A ‘Drug’ includes all medicinenternal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatments, mitigation or prevention of any disease or disorder in human being or animals, including preparations applied on human body for the purpose of repelling insects”.
With these statutory definitions it will be much easier for the revenue department and the court to decide each individual case much better than now.
