Liril Active Shower Gel is Soap and not Cosmetic preparation
THE issue is classification of the product ‘Liril Active Shower Gel'. The appellant classified the product under heading 3401.10 of the Tariff as Soap. The department alleged that ‘the composition, characteristics and advertised use for care of skin' justified its classification in heading 33.04 which covers "Beauty or make up preparations and preparations for the care of the skin (other than medicaments), including sunscreen and suntan preparations; manicure or pedicure preparations". The Commissioner upheld the allegations and in appeal, the Tribunal held thus -
"5. It is not disputed by either side that the use of the product is for washing of the skin and of bath. On the face of it, the product does not fall within any of the categories of the first part of Heading 33.04. The show cause notice relies upon the advertised use of the product. It is to be noted that, it is settled law that the use to which the product is purported to be suitable, as claimed by its manufacturer, is not a criterion for its classification. Apart from this, it is difficult to accept that it is advertised as claimed by the department. The notice does not set out any specific basis for the allegations it contain. The advertising that the Departmental representative emphasises, that the product makes its user feel fresh can by no means justify its classification in Heading 33.04. Freshness is by no means an expected or desired result of most of the product of Heading 33.04. It is hard to think of such products as lipstick etc. conferring any freshness upon its user. It is also of course evident that the claim for freshness can be made for any number of products or processes such as sweet, end use preparations, beverages, foods, nutritional substances etc. In fact, such a claim can be made for products which are used in connection with bathing. No one can deny the freshness that results after a wash or a bath. Such a general claim is no justification for classifying the product in Heading 33.04."
An alternative classification under heading 33.07 as bathing preparations was suggested by the Departmental Representative but the Tribunal negated it by observing that this was not a case before the Commissioner and it is not permissible for the Revenue to raise such a contention at this stage.
So, the order of the Commissioner was set aside and the classification under heading 3401.10 as claimed by the appellant was upheld.
The CCE, Nagpur had filed a Civil Appeal before the Supreme Court and it was admitted in August, 2003.
The matter was decided by the Apex Court recently. The Supreme Court held -
"2. We are in complete agreement with the view taken by the Customs, Excise and Gold (Control) Appellate Tribunal in its order dated October 3, 2002 holding that the product 'Liril Active Shower Gel' is covered by Heading 34.01 which covers soap and various other substances and the product is not covered by Heading 33.04 as contended by the Revenue. "
The Civil Appeals were accordingly dismissed.