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TMI Blog2013 (4) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct is Ayurvedic Oil and which is manufactured by M/s G.K.Burman Herbal (India) Pvt. ltd. Bhadrabad, Haridwar, Uttarakhand. The manufacturer is a registered and holder of drug license to manufacture the product in question. The said license is dated 27.2.1987 which is being renewed regularly. The product is an Ayurvedic Medicament and is prepared as per Ayurvedic Book "BHAV PRAKASH" with Ayurvedic ingredients. The composition of the said product is given in paragraph 8 of the writ petition. For the Assessment Year 2005-2006 and 2006-2007, the assessing authority accepted the petitioner's contention that Himgange Oil is nothing but an Ayurvedic product and levied the tax accordingly @ 4%. Thereafter the assessing authority sent the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, therefore it necessitated the reopening of the assessment proceedings. It has been further stated that against the judgment of this court, which has been relied upon by the petitioner, the department has filed a special appeal before the Supreme Court which is said to be pending. Heard Shri V.K.Rastogi, learned counsel for the petitioner and Shri C.B.Tripathi, learned special counsel for the respondents. The only issue raised by the petitioner is that the permission granted under section 21(2) of the Act is illegal as the product in question is Ayurvedic product and it has been so treated in the earlier assessment years as well as in the subsequent assessment years. It was submitted that in the subsequent assessment, the sample of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the product in question as also the method of its manufacturing in the counter affidavit, no reliance can be placed on paragraph-9 of the counter affidavit. The fact that Himgange Ayurvedic Oil is being manufactured as per the Ayurvedic Book known as "BHAV PRAKASH' and its ingredients are herbal remains undisputed. Reference was made to a decision of the Apex Court in the case of Commissioner of Central Excise versus Sharma Chemical Works 2004 NTN (24) 28 with respect to one Banphool Oil. The Apex Court has held that Banphool Oil is classified as an Ayurvedic medicament. The case of the Department was that Himani Navratan Oil is liable to be taxed as cosmetic has been rejected. In the case of the petitioner itself, the High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that burden to prove that a particular product falls in the residuary clause is upon the department. It has been further laid down that if a particular item is being taxed at a particular rate unless there is something otherwise the goods shall continue to be taxed at that rate. The relevant portions are extracted below: "73.In this case also, the report of the Chemical Examiner is in favour of the assessee. Furthermore, in a case of this nature, where the revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative. 74. In Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Ltd. and Others [(1996) 10 SCC 413], this Court opined : "15. .....The burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail..." 76. If an entry had been interpreted consistently in a particular manner for several assessment years, ordinarily it would not be permissible for the Revenue to depart therefrom, unless there is any material change. {See Bharat Sanchar Nigam Ltd. and Another Vs. Union of India and Others [(2006) 3 SCC 1]" In nutshell, we find that 'Himgange Oil' has always been taxed as Ayurvedic Oil. For the assessment year 2006-2007, this has been held that 'Himgange Oil' falls under the cate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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