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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 ..... s sought for by the dealer – Order passed by Commissioner under the provision of Section 94 of KVAT Act, 2003 binding on all authorities subordinate to Commissioner – Person affected by the order has the right to file an appeal against the order – Section 62 and 94 Appeal to High Court – Limitation - 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 – The period starts from the ‘date of knowledge’ when clarification not sought before Commissioner by person filling appeal to High Court – Section 62 of Kerala Value Added Tax Act, 2003 - 12 of 2008 - - - Dated:- 30-11-2009 - P.R. Raman and P.R. Ramachandra Menon, JJ. REPRESENTED BY : Shri E.K. Nandakumar, for the Petitioner. Government Pleader, for the Respondent. [Judgment per : P.R. Raman, J.]. This is an appeal filed under Section 62 of the Kerala Value Added Tax Act, challenging an order of clarification passed by the Commissioner of Commercial Taxes, Thiruvananthapuram, dated 21-4-2008 in exercise of the power conferred on him under Section 94 of the Kerala Value Added Tax Act. The appellant is a Company incorporated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er issued by the Commissioner under sub-section(1) shall, subject to the provisions of Section 62, be final and binding on the applicant and all authorities subordinate to the Commissioner, including Deputy Commissioner (Appeals). Therefore, any other dealer of the same product in other parts of the State or even the appellant himself happens to raise this question before the concerned assessing officer, the said authority being bound by the statutory prescription under Section 94(5) of the Act, cannot decide the question independently and will be bound to give effect to the order issued by the Commissioner. Thus a clarification order issued by the Commissioner under Section 94(1) has binding effect on the authorities subordinate to the Commissioner and since the appellant is the manufacturer of the products in respect of the clarification issued, it is a person aggrieved by the Order passed under Section 94(1). Now coming back to Section 62, which provides for an appeal to the High Court and it confers a right of appeal to any person objecting to an order affecting him passed under Section 59A . Therefore in order that a person gets right of appeal under Section 62, he need onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product is now classified under Entry 24(1) of SRO 82/2006, we may refer to the said provision also. Entry 24(1) of SRO 82/06 reads as under : 24. Confectionery including toffee, chocolate and sweets of all kinds, ice-candy, ice-cake, ice-jetty, kulfi and frozen confectionery, frozen dessert, chewing gum, bubble gum and the like sold under brand name registered under the Trade marks Act, 1999 (1) Sugar confectionery (including white chocolate), not containing cocoa (a) Chewing gum, whether or not sugar-coated 1704.10.00 (b) Jelly confectionery 1704.90.10 (c) Boiled sweets, whether or not filled 1704.90.20 (d) Toffees, caramels and similar sweets 1704.90.00 6. The rate of tax applicable to Entry 24(1) of SRO 82 is 12.5%. Admittedly, the rate of tax applicable under various entries of SRO 82 is 12.5% and if any of the goods are not specifically classified in any of the entry mentioned thereunder, the residuary article contained in Entry 103 of SRO 82/06 will take care of such items as well. The goods which are not specifically covered under any of the schedules of the Kerala Value Added Tax Act, the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Ayurvedic system came for consideration before the Apex Court in an appeal arising from the decision of the CEGAT Special Bench C New Delhi, the decision of the Tribunal as reported in 1989 (42) E.L.T. A100 which is confirmed by the Apex Court in 2006 in Rittindusta v. Collector of Central Excise corresponding to Collector of Central Excise, Hyderabad v. Richardson Hindustan Ltd. [2004 (9) SCC 156]. The Apex Court merely confirmed the order of the Tribunal without any elaborate discussion. It was noticed, in common parlance, Vicks Vaporub is an Ayurvedic medicine. One of the tests laid down in Shree Baidyanath Ayurved Bhawan case is thus satisfied by Vicks Vaporab. The Tribunal referred to its previous order in the case of Shree Baidyanath Ayurved Bhawan where the product Dant Manjan Lal, where a similar issue arise for consideration. 10. The Tribunal found that there is no definition of Ayurvedic medicine in the Central Excise Tariff Act though Ayurvedic medicine is defined under Section 3(a) of the Drugs and Cosmetics Act. But that definition cannot apply for the purpose of classification of the product under the Central Excise Tariff Act and the Central Excise Salt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the determination of classification under the Central Excise Act. 12. In the same decision, the question as to whether, when the product is sold across the counters and not under Doctors prescription, does it by itself lead to the conclusion that it is not a medicament, was answered in the negative by referring to the earlier decision of the Apex Court in Commissioner of Central Excise, Calcutta v. Sharma Chemical Works [2003 (154) E.L.T. 328 (S.C.)] and quoted the following passage of that decision. It is a settled law that the onus or burden to show that a product fall within a particular Tariff Item is always on the revenue. Mere fact that a product is sold across the counters and not under a Doctor s prescription, does not by itself lead to the conclusion that it is not a medicament . 13. In Puma Ayurvedic Herbal (P) Ltd. v. Commissioner of Central Excise, Nagpur [2006 (196) E.L.T. 3 (S.C.)] similar question arose for consideration regarding the interpretation as to whether Puma neem facial pack, Puma anti-pimple herbal powder and other relative products are Ayurvedic preparation or mere cosmetics. The Apex Court applied the twin test for determination of classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic or prophylactic uses. Once it is held that Vicks tablets and Balms are Ayurvedic preparations and therefore fall under Entry 36 for the reasons which have already stated above, Rule 23 of the Rules of Interpretation in no way will water down the said conclusion, nor could it be said as contrary to what has been stated earlier. 16. Rules of Interpretation, more in the nature of clarification of the product referred to in Rule 23 or the use are totally different as far as products in question are concerned. We do not find that Rule 23 of the aforesaid Rules of Interpretation appended to the statute will in any way tarnish these items against classification under Entry 36 of the 3rd schedule. More so, none of the reasons as stated in the Annexure A order will show that the products in question are classifiable otherwise than under Entry 36 of the 3rd schedule of the Kerala Value Added Tax Act. Accordingly, the order in Annexure A of the Commissioner of Commercial Taxes, Thiruvananthapuram in so far as the goods in question are concerned is set aside and we declare that the products namely Vicks, Vicks Vaporub and tablets are classifiable under Entry 36 of the 3rd schedule, attra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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