9911796707
TMI Blog1996 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... de I.P. ... 16% w/w Starch I.P. ... 52% w/w Talc purified I.P. ... 100% The composition of Nycil powder has curative effect on skin against fungal action and other skin ailments. The article is not called medicated or talcum powder or powder. The name given is Nycil. The article is packed in a long round plastic container. The powder is white and perfumed and in appearance it is not different from the white talcum or other powders. The medicinal substances used in the manufacture of Nycil are Indian Pharmaceutical or British Pharmaceutical articles for the use of which a licence is necessary. Licence is also necessary under the Indian Drugs Control Act for manufacturing, stocking or selling Nycil powder and licence has been issued accordingly. Under the Central Excise Tariff under item No. 14E Nycil powder is assessed to duty as p. and p. medicines. Nycil is a protective, curative medicated powder and it is not a toilet article nor a cosmetic within the meaning of the Drugs and Cosmetics Act, 1940. Since Nycil is not a cosmetic and it is a drug, a warning has been printed on the container of Nycil that it should not be applied where the skin is raw, broken or ulcerated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wder can never be used as medicine or drug as stated by the petitioner in view of the fact that in common parlance and commercial parlance Nycil powder is not treated as drug and it is available in abundance even in grocery shops for the sale of which no drug licence is necessary. Nycil powder has no curative effect. Drug licence issued to the petitioner under the Drugs and Cosmetics Rules, 1945 is no proof of the fact that Nycil is a drug. Sl. No. 41(e) of the Schedule to the Act of 1972 is applicable on the entry of Nycil powder into the Calcutta Metropolitan Area. The petitioner was informed of this position by Memo. No. 1833/ET dated May 5, 1989 in response to his letter. Under Sl. No. 41(e) of the Schedule to the Act of 1972 all sorts of medicated powder used for care of skin is taxable at the rate of three per cent ad valorem. Nycil powder which is alleged to be medicated powder to be used for care of skin shall be accordingly taxable under the said entry on the analogy of Boroline which has also been held by this Tribunal to be a cosmetic although medicated and not a drug. This Tribunal's decision on Boroline is reported in [1993] 89 STC 355 (Commissioner of Commercial Taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India has directed that Nycil powder should be assessed to duty as "p. and p." medicines under item No. 14E of the Central Excise Tariff. Mr. Mukherjee has relied upon the definition of drugs as given in the Drugs and Cosmetics Act, 1940 and has contended that all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis of treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes is a drug as defined in section 3(b) of the said Act. According to Mr. Mukherjee, Nycil is a drug according to this definition. Nycil, according to Mr. Mukherjee, is not cosmetics as it is not used for beautifying or grooming a person like face powder, talcum powder, vanishing cream, lip-stick, etc. Prices of drugs are required to be controlled under the provisions of the Drug (Price Control) Order, 1979 and the Development Commissioner (Drugs) has issued orders regulating the price of Nycil-vide annexure "B", page 27 of the application. Mr. Mukherjee has relied upon a decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the option to controvert or deny any statement made in the affidavit-in-opposition by an affidavit-in-reply. The said regulation nowhere provides for an option to the applicant to bring on record matters totally unconnected with the affidavit-in-opposition or with the subject-matter of the writ application. We, therefore, ignore the statements in paragraphs 2 and 3 of the affidavit-in-reply relating to the alleged challenge of vires of the West Bengal Taxation Tribunal Act, 1987 and the other unrelated statements made therein. 8.. In order to appreciate the respective contentions of the parties we may reproduce section 6(1) and Sl. No. 41(e) of the Schedule of the Act of 1972. "Section 6. Levy and collection of taxes.-(1) Save as otherwise provided in this Chapter, there shall be levied and collected, for the purposes of this Act, a tax on the entry of every specified goods into the Calcutta metropolitan area (for consumption, use or sale therein) from any place outside that area, at such rate, not exceeding the rate specified in the corresponding entry in column 3 of the Schedule, as the State Government may, by notification, specify." "Sl. No. 41(e): All sorts of cosmetics and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for prickly heat and for care of skin, it is covered as a specified goods by Sl. No. 41(e) of the Schedule to the Act of 1972. The question whether Nycil is a drug or a cosmetic is not of relevance for the purposes of Act of 1972. 9.. Mr. G.C. Mukherjee's contention that Nycil should be treated as a drug because a drug licence has been issued for its manufacture and because of the price control order issued by the Development Commissioner (Drugs) and also because of the decision in the case of B. Shah & Co. v. State of Gujarat reported in [1971] 28 STC 5 appears to be not germane in the present controversy before us. The question in the case before the Gujarat High Court was whether having regard to the ingredients of Nycil powder, its nature and property and the advertised use for which it is recommended, the article in question can be said to be an article which can be directly used for the purpose of grooming a person by beautifying his appearance. The real question in that case was whether it could be said that Nycil powder is an article which is meant for being used by itself for the purpose of dressing or grooming a person so as to beautify his appearance. The said q ..... 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