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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 ..... an Ayurvedic product. It has been found so even by National Laboratory on examination. The basis of the impugned order dated 2.3.2012 granting sanction under section 21(2) is the survey dated 27.8.2009, conducted by SIB, the product was sent for its testing and in the opinion of the surveying officer, the 'Himgange Oil' does not come under the category of medicine. It was found otherwise. The report of the Laboratory has come and the assessing officer on the basis of the test report has treated 'Himgange Oil' as an Ayurvedic preparation. Upshot of the above discussions is that, except for these two assessment years the product has been treated as Ayurvedic preparation and the said finding has been approved by the High Court inter par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g but an Ayurvedic product and levied the tax accordingly @ 4%. Thereafter the assessing authority sent the proposal seeking permission to reopen the assessment for the assessment year 2006-2007 to the Additional Commissioner, Grade-I, Trade Tax to reopen the assessment under section 21(2) of the U.P Trade Tax Act as the commodity in question should have been taxed as unclassified item and not as Ayurvedic preparation. The petitioner filed objections, to the proposal. By the impugned orders, dated 2.3.2012 permission to reopen the proceeding for the assessment year 2006-2007 has been granted. The petitioner has also challenged the notice issued under section 21(2) of the Act asking the petitioner to give the reply as to why the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars as well as in the subsequent assessment years. It was submitted that in the subsequent assessment, the sample of commodity in question was sent to the National Laboratory of Government of India for testing. The report has been received from the Laboratory giving its finding that the product in question is Ayurvedic Oil. We were referred to the assessment order for the assessment year 2007-2008. A copy of which has been filed as annexure-5 to the writ petition. Therein, the assessing officer has considered the matter in depth and reached to the conclusion after taking into consideration the report submitted by the analyst of the Laboratory of Government of India as also other attending facts and circumstances of the case that the Himgang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avratan Oil is liable to be taxed as cosmetic has been rejected. In the case of the petitioner itself, the High Court has dismissed the revision filed by the Commissioner of Commercial Tax for the assessment year 2006-2007 wherein the issue was whether the Tribunal was justified in holding that Arnica Hair Oil and Banphool Oil falls under the entry medicine and not cosmetic, hence are liable to be taxed @ 8%. The judgment reported in 2012 NTN(48) 349. The relevant portion is extracted below: "Learned Counsel for the respondent assessee has also placed reliance on a decision of the Apex Court in the case of Commissioner of Central Excise Vs. M/s Sharma Chemical Works 2004 NTN(24) 28 the same item Banfool oil has been treated to be classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative. 74. In Hindustan Ferodo Ltd. Vs. Collector of Central Excise, Bombay [(1997) 2 SCC 677], this Court held: 4. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. 5. It is not the function of the Tribunal to enter into the arena and make suppositions that are tantamount to the evidence that the party before it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s always been taxed as Ayurvedic Oil. For the assessment year 2006-2007, this has been held that 'Himgange Oil' falls under the category medicine and not cosmetic. The said judgment is binding on the respondents herein. Moreover there is no denial at any stage by the respondents with regard to the contents of the product or its manufacturing process which leads to the conclusion that the product is an Ayurvedic product. It has been found so even by National Laboratory on examination. The basis of the impugned order dated 2.3.2012 granting sanction under section 21(2) of the Act is the survey dated 27.8.2009, conducted by SIB, the product was sent for its testing and in the opinion of the surveying officer, the 'Himgange Oil' does not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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