The court made the ruling as a result of the central excise in Mumbai, which brought a case before the bench as a result of the product Moisturex which they believed should be taxed as a cosmetic.
Under the existing law, medicant products are charged a 15 percent central excise duty, as opposed to cosmetic products which are charged 70 percent.
The bench was presided over by Justice SJ Mukhopadhaya and Justice Kurian Joseph, who released a statement saying: “’Care or cure’ is the clue of the lis (dispute) arising in these cases.”
“If a product’s primary function is “care” and not “cure”, it is not a medicament.”
Moisturex- a medicinal product?
Moisturex is a medicinal cream with moisturizing properties which is commonly used as a treatment for skin conditions.
The Mumbai court ruled that since Moisturex s primarily intended to treat dry skin complaints, fissures and ichthyosis, it should not be classified as a cosmetic product.
Regarding the law in general, the bench ruled:“Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical condition.”
“A product that is used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities is to be branded as a medicament.”
In response to the ruling, the central excise department has argued that medicinal creams like Moisturex should only be sold with a doctor’s prescription rather than over the counter.
In their appeal to the court, the excise department argued:“even if such cosmetic products contain certain subsidiary pharmaceutical contents or even if they have certain subsidiary curative or prophylactic value, still, they are to be treated as cosmetics only.”
However the court rejected this claim, pointing out that a number of other products are sold over-the-counter and are still classed as medicinal.