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TMI Blog2009 (11) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in the entry 36 of the 3rd schedule of the Kerala Value Added Tax Act. The Commissioner took the view that these items are sold over the counter in almost all retail shops and are available freely and in view of the clause 23 to the Rules of Interpretation appended to the statute, which according to him, differentiated these items against classification under entry 36 of 3rd schedule. According to him Vicks tablets and Balm may contain certain added medicaments and in common parlance it is not treated as a medicine as appearing in Entry 36 of 3rd schedule. Accordingly, it was clarified that Vicks tablets are 'confectionery' falling under Entry 24(1) of SRO 82/2006 and taxable at the rate of 12.5% and that Vicks balm also taxable at the rate of 12.5% vide Entry 103 of SRO 82/2006. 2. Though the appellant is the manufacturer of the products, a clarification was sought for by the dealer. So a preliminary objection was raised as to the maintainability of the appeal at the time of admission. Subject to the right of the parties to raise their respective contention, this was admitted. We heard both sides. Section 94 of the KVAT Act, hereinafter referred to as the 'Act', empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al under Section 62. 3. True, in the matter of reckoning the period of limitation prescribed in the same section, the period of 90 days is to be reckoned from the date on which the order was served on the person, in the manner prescribed. But the fact that, the period of limitation starts from the date of service of the order cannot control the preceeding part of the Section providing for an appeal. The object behind the prescription of the period for limitation being the 'date of knowledge', in the case of a person who has not sought for any clarification, the period has to be reckoned from the date on which he came to know of the order. In this case, this appeal has been filed within 90 days from the date of knowledge of the order passed and the cause of action arose for challenging the same. Since it has been shown that the appeal has been filed within 90 days from the date of knowledge, we find that the appeal is in order and the preliminary objection is overruled. 4. It was pointed out that a similar view was already taken by a learned Judge of this Court in P.O. Abraham Associates v. Commissioner, Commercial Taxes and Another [128 (2002) STC 301]. Though the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the SRO 82/2006 attracting Entry 103 of SRO 82/06, or any entry in the schedule to the Kerala Value Added Tax Act for which the rate applicable is 12.5%. 7. The Commissioner of Commercial Taxes, as per Annexure A order held that : (1) the product namely Vicks tablets and balm, even if it contains certain added medicaments in common parlance, it is not treated as a medicine as appearing in Entry 36 of 3rd schedule; (2) these items are sold over the counter in almost all retail shops and are available freely and (3) Clause 23 to the Rules of Interpretation appended to the statue clearly differentiates these items against classification under Entry 36 of the 3rd schedule. 8. The question as to whether 'Halls' Ayurvedic Tablets falls under Entry 25 of the 3rd schedule taxable at 4% or whether it is a confectionery taxable at the rate 12.5% came up for clarification before the same Commissioner at the instance of the manufacturer of that product namely M/s. Cadbury India (P) Limited, vide order dated 15-1-2006, a copy of which was made available to us by the learned counsel for the appellant. It is seen that the same Commissioner clarifies that, 'Halls' Ayurvedic Tablet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held that having regard to the facts and circumstances and in view of the finding and reasoning given by the Tribunal, the matter did not call for any interference. It may be immediately noticed that the remand was only on other issues and therefore, the finding of the Tribunal that the product was an 'Ayurvedic medicine' as understood in the popular sense, has been approved by the Apex Court in the above decision. 11. In Naturalle Health Products (P) Ltd. v. Collector of Central Excise, Hyderabad [2003 (158) E.L.T. 257 (S.C.)], the question as to whether 'Vicks Vaporub' manufactured in acordance with and under licence issued under the Drugs and Cosmetics Act, 1940 was an 'Ayurvedic medicine' came for consideration. At the relevant point of time, it was the Naturalle Health Products Pvt. Ltd. Who manufactured the same product as now manufactured by the appellant. It was held that Ayurvedic medicine not having been defined in the Central Excise Act, 1944 or the Central Excise Tariff Act, 1985, the common parlance test would have to be resorted to, for finding out whether a medicine is treated as an Ayurvedic medicine by the public. When there is no definition of any kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edients, though it may be low, because a larger use may be harmful for the human body, therefore, the fact that use of medicinal element in a product was minimal does not detract from it being classified as a medicament. 14. Placing reliance on the Note 2 of Chapter 33 of the Central Excise Tariff which is as under :- "Note 2. Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value". An argument was raised that even if a product has some curative effect or prophylactic value, it will still be treated as a cosmetic. Repelling the contention, the Apex Court held that the word 'subsidiary' in the said note from which it follows that a subsidiary curative or prophylactic property or use will not con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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