Madras High Court said [1] Bringamalika Thailam that was sold with such a label could not be taken as perfumed hair oil because basically they were intended for use of cooling the entire body before bath. In plain terms, it means legally that a suggestive advertisement can misguide customers but it should not misguide the Revenue Department for the purpose of classification. For that purpose, the department must know what basically the product is, its use and how is it known in the market parlance etc. It cannot go merely by the advertisement. The taxpayers' attitude is "catch me if you can".

The Bombay High Court observed [2] in the case of a toilet product vis-à-vis medicine that "the advertisement cannot be regarded as at all decisive in the proper classification". In another case [3] the same court has even gone to the extent of observing that the classification cannot depend "on the advertisement gimmick of the advertiser".

The Supreme Court observed [4] in the case of some resins that the chief chemist's report is to be accepted and the advertisement is "not determinative of the character of a commodity".

There are several judgements of the Tribunal that have followed by the above principle laid down by the courts in relation to products like cosmetics and toilet preparations, chocolate, pan masala, etc.

The legal reason why advertisement cannot be taken as conclusive proof for classification is that there is no estoppel against the taxpayer. Just because the advertisement discloses certain qualities of the product actually meant for promoting sale, it cannot be used against the taxpayer [5].

The advertisements do not always go in favour of the taxpayers. I remember the case of import of a highly technical product namely 'machining centre', which was described as 'lathe machine' in the advertisement. Lathe machine attracted higher duty. When the importer claimed them to be machining centre, I consulted many technical people and found the difference between the two products very marginal. But actually it was a machining centre and not a lathe machine, though they advertised it as lathe machine for reasons which were vague. I did not read any one of these judgements at that time but followed the simple principle that goods have to be classified on the basis of what they actually are and not on the basis of what they are said to be in advertisement.

The conclusion is that practically in all cases, with rare exceptions, advertisements are such that the products would attract lower rate of duty if the advertisement is taken as correct. Therefore, the best policy for the department is to ignore "the gimmick of the advertiser", a term used by the Bombay High Court. The morale of the story is that the advertiser has a right to resort to "gimmick" to attract customers for selling products. Customs or excise law cannot punish them as advertisement is not a declaration before the Revenue Department, and there is no other law either.