2007 (11) TMI 572 - HC - VAT and Sales Tax

Tooth pastes - whether or not medicated or as defined under the Drugs and Cosmetics Act, 1940? - Held that - We do not find any justifiable ground to accept the contention of the petitioner to hold the items in question as medicinal preparation by the mere application of the decision relied on by the assessee-petitioner herein without any factual basis to hold so. Considering the fact that the proceedings challenged before this court are at the stage of assessment, the contention now raised before this court merits to be taken before the assessing authority concerned for consideration on merits. If there is any delay on the part of the petitioner in filing the objections on the said date, it is open to the assessing officer to pass necessary orders on merits and complete the proceedings.

Summary

Issues:
Challenge against the condition prescribed under entry 7 of Part E of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 regarding the taxation rate of toothpaste. Interpretation of whether toothpaste falls under entry 7 of Part E or entry 20A of the Act.

Analysis:

The writ petition challenged the condition under entry 7 of Part E of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, which imposed a 12% tax rate on all toothpastes, regardless of whether they were medicated or defined under the Drugs and Cosmetics Act, 1940. The petitioner argued that toothpaste should be classified as a medical formulation under entry 20A of Part C, taxed at 5%. The Tribunal rejected this argument, stating that the intention of the Legislature was to include toothpaste under entry 7 of Part E. The High Court considered the petitioner's contention that the toothpaste was manufactured under a drug license and should be treated as a medicinal preparation. However, the court emphasized the need for factual evidence to support this claim, citing a Supreme Court decision that products should be understood and treated in the market as drugs and medicines to be classified as such.

The High Court highlighted that the determination of whether the toothpaste constituted a medicinal preparation required factual examination regarding its medical contents, curative function, and usage for disease prevention or treatment. The court directed the petitioner to present supporting materials to the assessing officer for a proper evaluation based on previous court decisions. The court emphasized that the assessing authority should consider the petitioner's objections and supporting evidence in light of relevant legal precedents before making a decision on the appropriate tax entry for the toothpaste.

In conclusion, the High Court disposed of the writ petitions, instructing the petitioner to appear before the assessing officer with all necessary materials to support the argument that the toothpaste should be taxed under entry 20A of Part C. The court emphasized the importance of presenting factual evidence and legal arguments to the assessing authority for a thorough evaluation and decision on the taxation classification of the toothpaste.