2017 (6) TMI 657 - HC - VAT and Sales Tax

Interpretation of statute - entry 28A, particularly after its amendment with effect from 01.08.2009 - classification of goods - Whether on the facts and in the circumstances of the case, the Tribunal has rightly held that, products sold by the opponent company are drugs and medicines and are not cosmetics and toilet preparations including tooth paste, tooth powder, hair oil, face and body lotion, cream and soaps are therefore, exclusion clause (b) of entry no. 28(A)(i) of the Gujarat Value Added Tax Act, 2003 will not apply and on the same basis, the products sold by the opponent fall under the entry no. 28(A)(i) of the Gujarat Value Added Tax Act, 2003? Held that - prior to its amendment, entry 28A(i) referred only to drugs, medicines and vaccines including bulk drugs. This entry does not have any further elaboration nor it has any exclusion clause. With effect from 01.08.2009, while maintaining the original main description of the items covered under the entry, the legislature introduced an exclusion clause which had two subclauses. We are concerned with subclause (b) which pertains to cosmetics and toilet preparations including tooth paste, tooth powder, hair oil, face and body lotions, creams and soaps. When a product is manufactured from medicinal drugs, be it Ayurvedic or homeopathic, is used under medical advice for specific disease, merely because it may have an element of improving appearance of the human beings, would not mean that the same is not a drug or a medicine, but a cosmetic. The Tribunal therefore correctly held that the products in question were drugs and medicines and not cosmetics or toilet preparations. If that be so, the consequential effect of the items being included in entry 28A(i) becomes simple. The exclusion clause cannot be applied by simply holding that the product in question is a toothpaste or a tooth powder whether it is a cosmetic or toilet preparation or not. Appeal allowed - decided in favor of assessee.

Issues Involved:
1. Classification of Ayurvedic and homeopathic products as drugs or cosmetics under the Gujarat Value Added Tax Act, 2003.
2. Interpretation of entry 28A of Schedule II of the VAT Act post its amendment on 01.08.2009.
3. Applicability of the exclusion clause in entry 28A to products such as hair oil, toothpaste, skin cream, and medicinal soaps.
4. Determination of whether the products are used for medical purposes or for beautification.

Detailed Analysis:

Issue 1: Classification of Ayurvedic and Homeopathic Products
The primary issue revolves around whether the products sold by the respondent assessee, including Ayurvedic hair oils and toothpaste, should be classified as drugs and medicines or as cosmetics and toilet preparations under the Gujarat Value Added Tax Act, 2003. The assessee argued that these products are pharmaceutical drugs made using Ayurvedic and homeopathic methods, registered under the Drugs and Cosmetics Act, and used for specific medicinal purposes. The competent authority initially held that despite being drugs, these products would fall under the exclusion clause for cosmetics and toilet preparations. However, the Tribunal later ruled that these products are indeed drugs and medicines, not cosmetics.

Issue 2: Interpretation of Entry 28A Post-Amendment
The amendment to entry 28A of Schedule II, effective from 01.08.2009, introduced an exclusion clause for cosmetics and toilet preparations. The pre-amendment entry simply included "Drugs, medicines & vaccines including (Bulk Drug)." Post-amendment, it added exclusions for "food and dietary supplements" and "cosmetics and toilet preparations including toothpaste, tooth powder, hair oil, face and body lotions, creams, and soaps." The Tribunal and the High Court had to interpret whether these products, despite being drugs, would be excluded if they incidentally served as hair oil or toothpaste.

Issue 3: Applicability of the Exclusion Clause
The exclusion clause in entry 28A(ii) was central to the dispute. The Tribunal found that the products in question, being drugs or medicines, should not be excluded simply because they are also used as hair oil or toothpaste. The High Court agreed, emphasizing that the exclusion clause should apply only if the primary nature of the product is cosmetic or toilet preparation. The legislative intent was to exclude products primarily classified as cosmetics or toilet preparations, not those incidentally used as such.

Issue 4: Medical Use vs. Beautification
The High Court noted that the products were manufactured using Ayurvedic or homeopathic substances, meant for specific diseases, used under medical advice, and not available without prescription. This medical use distinguished them from products intended for beautification or enhancing appearance, which would fall under cosmetics. Judicial precedents, including Supreme Court decisions, supported the classification of such products as drugs and medicines rather than cosmetics.

Conclusion:
The High Court upheld the Tribunal's decision, ruling that the products in question are drugs and medicines, not cosmetics or toilet preparations. The exclusion clause in entry 28A(ii) should be interpreted to apply only to products primarily classified as cosmetics or toilet preparations. The appeals were dismissed, and the question was answered in favor of the assessees.

← Previous Next →