FAKHRUDDIN G. EBRA1iIM, J.-The petitioners are the manufacturers of a drug known as PHISOHEX and the question for determination in this petition is whether this product can be classified as an excisable product under item 28 of the First Schedule to the Central Excises and Salt Act, 1944, which question has been answered in the affirmative in the order of the Deputy Collector, impugned in this petition. The said item 28 reads as follows :---- ---Perfumery, Cosmetics and Toilet Preparations.-Perfumery, cosmetics and toilet preparations, all sorts, whether medicated or otherwise, including soap not falling under item 29."
2. It is an admitted position that the product PHISOHEX is registered as a drug under the Drugs Act and when drugs were manufactured under generic name the product was known as "HEXACHLORO PHENS CREAM". The learned Deputy Collector in arriving at the finding that the product was a medicated shampoo relied on the report of the Chemical Analyst who described "PHISOHEX" as a white milky paste freely soluble in water and slightly acidic but was highly surface active with high foaming powders. The report further 'stated that this chemical product was having all the properties/traits of a detergent though containing 2.82% of "HEXACHLOROPHENE" as antibacterial agent. The Deputy Collector also relied on the literature accompanying the product in which instruc--tions were given as to how the product can be used as a general cleaning agent and as a shampoo.
3. Mr. Mashir Pesh Imam, the learned counsel for the petitioners challenged the aforesaid finding of the learned Deputy Collector on the ground that what has to be determined in the primary use of the product and not that product was also capable of being used as a cleaner or a medicated shampoo. The learned counsel relied on a judgment of this Court in Constitutional Petition No. 242/1969 in which the question was whether Prickly Heat Powder was a medical preparation or comes under perfumery, cosmetics and toilet preparation. The Court came to the conclusion that the nature of the product is to be determined by reference to its primary use and accordingly the Court had no hesitation in holding that the primary use of prickly heat powder is as a medical preparation and not as a perfumery, cosmetic and toilet preparation and though the latter use may be subsidiary use of this product and this subsidiary use will not take away the medical character of the prickly heat powder. No doubt that when the above case came to be decided the underlined' words in item 28 "perfumery, cosmetics and toilet preparations, all sorts, whether medicated or otherwise including soap not falling under item 29" were not present but the principle decided ii to my mind applicable to the present case. We may add here that the Brussels Nomenclature while defining item 33.06 (equivalent of item 28 herein) states that heading perfumery, cosmetics and toilet preparations does not include medical preparations having subsidiary use as perfumery, cosmetics and toilet preparations.
4. Unlike the Prickly Heat Powder, the petitioner's product is registered as a medicine under the Drugs Act, 1976. The product was so registered, among other things, on representation that it was intended to promote its sales through medical preparations as a prescription item. It is stated on the product that the user must follow physicians directions carefully an keep it out of reach of children and that it contains among other things 3% "HEXACHOLOROPHENE". In Pakistan National Formulae published in pursuance of section 8 of the Drugs Act, 1966, the product was given the generic name of "HEXACHOLOROPHENE CREAM". It is also relevant to mention that the preparations containing more than 0.75% "HEXACHLOROPHENE" are internationally regarded as drugs, available on prescription by a physician as it is regarded as a health hazard. While -announcing the decision of Food and Drug Administration the (U. S. A.) limiting the use of Hexachloronbene (H. C. P.) to prescription, Charles C. Edwards, M. C. Commissioner of Foods and Drugs gave the following data:- ---- "HCP was absorbed through the skin, both of animals and humans. It could have an adverse effect on nervous tissue, both of animals and humans. Under certain circumstances and at higher concentrations, HCP is a very potent neurotoxin; HCP could enter the body and blood with particular ease through damaged skin or the skin of infants. The Commissioner further stated in his report that;----- "At the same time, there can be no doubt HCP has been shown to be useful in outbreak of specific infections in hospital nurseries and in individual patients where the bacteria resist other control methods. Our purpose is not to retain HCP for use by the physicians when in his judgment the risk of toxicity is outweighed by the efficiency of HCP in controlling infections. Such restriction is necessary and adequate to assure continued safe use of this effective germ fighter.
5. Mr. Pesh Imam the learned counsel for the petitioners pointed out that our Drugs Act, 1976 recognises both the United States Pharmacopoeia as well as the National Formulae of the United States and therefore, aforesaid literature on the subject becomes relevant for the determination of the present question. Admittedly "PHISCHEX" contains 3 % HEXA CALOROPHENE" which makes it primarily a drug and the fact that it may under certain circumstances be also used as a cleaner or shampoos will not make any less a drug or any more, a toilet preparation.
6. The result therefore, is that Phisohex is not liable to excise duty and as such the impugned order dated 26th January 1978 is of no legal effect. The petitioners will also be entitled to costs.