9911796707
TMI Blog1998 (9) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... (RN-159) and March 31, 1993 (RN-160). 2.. The company s case is that it carries on the business of, inter alia, manufacturing drugs and medicinal preparations including Boroplus antiseptic cream (for short, Boroplus ) for sale. Up to October 15, 1987 Boroplus was manufactured according to Homeopathic system of medicine, but since October 30, 1987 it has been manufactured according to Ayurvedic system of medicine. Reference has been made to Notification No. 1658-F.T. dated August 1, 1956 issued under section 25 of the 1954 Act, wherein drugs and patent or proprietary medicine are included as defined in section 3 of the Drugs and Cosmetics Act, 1940 (henceforth referred to as the Drugs Act ). Reference is also made to definition of medicinal preparation in section 2(g) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (in short, the 1955 Act ). It is claimed that since Boroplus is a medicinal preparation containing rectified spirit, the company applied for and obtained a licence under the 1955 Act for manufacture of the Homeopathic product containing rectified spirit. The registration certificate of the company as a dealer under the 1954 Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oroplus within a period of one year from the date of the judgment and for that purpose certain directions were given. 3.. The further case of the company is that after the said judgment dated May 6, 1996 was passed, respondent No. 1 issued 12 communications all dated June 3, 1996 for assessments for the periods of 12 months each ending March 31, 1983 to March 31, 1994. Then the company addressed letter dated July 1, 1996 to respondent No. 1, pleading that by the judgment dated May 6, 1996 of this Tribunal only the assessments, which were completed during the continuance of the interim order of the High Court, were quashed, and not all the assessments irrespective of dates of orders of assessment. It was also submitted that the High Court s interim order expired on May 22, 1989. According to the applicant-company, during the period of operation of the High Court s interim order, namely, between September 16, 1987 and May 22, 1989 only the assessments for the periods of 12 months each ending March 31, 1983 to March 31, 1986 had been made, and the assessments for the remaining periods of 12 months each ending March 31, 1987 to March 31, 1994 were made after expiry of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a medicine under both the systems. Similarly, respondent No. 1 s observation is criticised that Homeopathic medicine can contain only one unmixed medicine at a time. It is stated that combination of Homeopathy medicines is permissible. In paragraph 29 of the application the company pleads that respondent No. 1 erred in holding that an Ayurvedic drug or patent or proprietary medicine must be manufactured exclusively in accordance with the formula described in authoritative books on Ayurvedic system of medicine. It is contended that the aforesaid composition holds good in respect of Ayurvedic drugs defined in section 3(a) of the Drugs Act, or in the case of patent or proprietary medicine defined in section 3(h) of the Drugs Act. Allegedly, it was not claimed before respondent No. 1 that Boroplus satisfies the definition in section 3(a) of the Drugs Act. It is claimed that the composition was arrived at the company s factory after extensive research and experiments. The company also pleads that combination of herbs is permitted in Ayurveda and the respondent was wrong in holding that Boroplus is a petroleum product, percentage of herbs being small. Expiry period of Boroplus is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate periods were disposed of by the Deputy Commissioner of Commercial Taxes, Corporate Division (the appellate authority) by an order dated September 8, 1997 which is annexed to the supplementary affidavit of the company and marked as annexure V. Boroplus was correctly classified as a cream within the meaning of cosmetic specified in Notification No. 3123-F.T. dated July 15, 1975 issued under section 25 of the 1954 Act, and not as a drug specified in Notification No. 1658-F.T. dated August 1, 1956 issued under the same provision. Merely because the company had obtained licence from the Director of Drugs Control, West Bengal under the Drugs Act, Boroplus, which is a cream, cannot become a drug. It is not disputed by the company that Boroplus is a cream and, as such, it falls within the expression snow and creams of all descriptions and varieties . Grant of drug licence does not conclusively prove that the licence was granted after thoroughly examining the compositions of Boroplus. It is neither a medicine nor a substance intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animals, nor Boroplus is a substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etent to determine the character or the class of the goods. Hence, such certificate of registration is not the determining factor in deciding whether Boroplus falls under the category of drugs or cosmetics. The assessing officer is a quasi judicial authority. The opinion expressed in the latter dated January 10, 1984 issued by the Public Relations Officer, Commercial Taxes Directorate, is not binding on a quasijudicial authority for the purpose of assessment of tax. Neither the documents filed by the company nor the drug licence dated May 21, 1987, prove that Boroplus manufactured from October 30, 1987 was an Ayurvedic drug for the purpose of levy of sales tax. Nor does the certificate dated December 11, 1987 issued by the Additional Director of Drugs Control prove that Boroplus was an Ayurvedic drug, as manufactured by the company. The drug licence was granted before commencement of manufacture of Boroplus. The statements by the manufacturer (the company) either on the packets or cartons or in the leaflets put inside the packets or cartons do not prove the true character of Boroplus. Before Boroplus can be classified as Ayurvedic drug under section 3(a) of the Drugs Act, the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Boroplus has its own name and utility independent of any system of medicine. The consumers taste, need and purpose are in no way affected by change of some ingredients or by changing the system of medicine. Hence, the assessing authority rightly held that Boroplus was a cream within the meaning of cosmetics. Boroplus cannot be treated as a Homeopathic or Ayurvedic medicine, if on the point of fact it is found that it is not a drug or a medicine. There are some products like soap or powder which contain medicinal ingredients to a certain extent, but for that reason have not become drugs or medicines themselves. In the commercial parlance Boroplus was not at all considered as a drug or a medicine. It is denied by the respondents that this Tribunal by its order dated May 6, 1996 in RN-11(T) of 1995 directed the assessing officer to make fresh assessments only in respect of those periods whose assessments were completed during continuance of the interim order of the High Court from September 16, 1987 to May 25, 1989. Respondents have asserted that in terms of this Tribunal s order dated May 6, 1996 the assessing officer had the authority and jurisdiction to make fresh assessments for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its ingredients may have such value. In spite of that, Boroplus is a cosmetic. 9.. Two affidavits-in-reply have been filed by the company in response to the two affidavits-in-opposition. Generally the averments in the main application and the supplementary affidavit have been repeated. The statements of the respondents have been denied. It is contended that all the items covered by Notification No. 3123-F.T. are for cleansing or beautifying or promoting attractiveness of human body. The expression creams of all descriptions and varieties cannot be read in isolation, and should be read in the light of different items covered by the entry. There was no entry during the entire relevant period regarding medicated cosmetics, otherwise there is no scope to treat Boroplus as medicated cosmetics. 10.. At the outset, two points need to be clarified. It will appear from foregoing paragraph 3 of this judgment that the applicant had taken a plea that only those assessments, which were completed during continuance of High Court s interim order, were quashed, and the rest of the assessments were not quashed. It has been also stated that assessments only for the periods of 12 months each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one product, namely, Boroplus. The contention is that fresh assessments were unwarranted for sales of other products of the company. This point was argued and also finds mention in paragraph 45(b), (c) and (d) of the written notes. The learned advocate for the respondents did not make a clear statement on this point. But upon a reading of the judgment and order of this Tribunal dated May 6, 1996 in RN-11(T) of 1995 it is clear that quashing of orders of assessment and directions for fresh assessments were all related to the turnover in respect of one product, namely, Boroplus, and no question arose (neither arises now) regarding the turnover in respect of sales of products other than Boroplus. There are several indications in the said judgment and order to this effect. Let us quote one sentence towards the end of the said judgment and order to make the position clear: Thus, the writ application is disposed of in so far as it relates to the dispute regarding assessment of Boroplus antiseptic cream under the West Bengal Sales Tax Act, 1954. Hence, Mr. R.N. Bajoria, learned counsel for the applicant, rightly submitted that no mandate or liberty was given to respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference has been made to Notification No. 1658-F.T. dated August 1, 1956, as amended. In the said Notification No. 1658-F.T. dated August 1, 1956 the items drug, patent or proprietary medicines were notified with the following descriptions: Drug as defined in clause (b) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) including dicophane (dichloro diphenyl trichloroethane), pyrethrum, renzene hexachloride dieldrin and their preparations, but excluding condoms (a contraceptive device) and chloroquine phosphate tablets. Patent or proprietary medicine as defined in clause (h) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940). 15.. Sl. No. 71 of Notification No. 1206-F.T. refers to Notification No. 1658-F.T. dated August 1, 1956 as also to Notification No. 3574-F.T. dated September 27, 1982. We have already seen what drugs are covered by Notification No. 1658-F.T. dated August 1, 1956. Sl. No. 71 chiefly refers to Notification No. 3574-F.T. dated September 27, 1982 for description of the item. That description is that Ayurvedic and Unani drugs including Siddha as defined in section 3(a) of the Drugs Act are notified for taxation under the 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n human body for the purpose of repelling insects like mosquitoes; (ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette; (iii) all substances intended for use as components of a drug including empty gelatin capsules; and (iv) such device intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board. 3(h) patent or proprietary medicine means,- (i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parenteral root and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that takes us to the definitions of drug and patent or proprietary medicine in clauses (b) and (h) of section 3 of the Drugs Act. From the impugned orders of assessment dated March 25, 1997 passed by respondent No. 1 for the periods in dispute it is clear that the assessing authority considered the materials placed and came to the finding that Boroplus was neither a Homeopathic medicine (for the period for which it is claimed to be so) nor an Ayurvedic medicine or drug (for the period during which it is claimed as such). Then he recorded a finding that it was a cosmetic and the assessment of tax proceeded accordingly. In arriving at such finding, respondent No. 1 held, inter alia, that Homeopathic medicines are supposed to be used in single form in dilution , but Boroplus was a combination of many ingredients and the method of preparation as laid down by Dr. Hahnemann was not followed and hence it was not a Homeopathic medicine. As regards Ayurvedic drug, the assessing authority held, inter alia, that combination of herbs may be an Ayurvedic drug, if it is manufactured exclusively in accordance with formula prescribed in authoritative books, and a mere hotch-potch of herbs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical terms as described in the said Notification No. 3574-F.T. dated September 27, 1982 (see paragraph 12 of this judgment). Section 3(a) of the Drugs Act was during the relevant periods as under: 3. In this Act unless there is anything repugnant in the subject or context,-(a) Ayurvedic, Siddha or Unani drug includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule. In the said First Schedule of the Drugs Act, there is a list of authoritative books on Ayurveda numbering as many as 54 plus 2 more (54A and 54B). On that basis the Deputy Commissioner held: It is relevant to place on record that Ayurvedic medicine remained all along defined in section 3(a) of the Drugs and Cosmetics Act and hence it should not be included within the meaning and definition of drug as defined in section 3(b) of the said Act. The history of legislation of section 3 of the Drugs Act is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that patent or proprietary medicine should not be understood under the 1954 Act with reference to the definition in section 3(h) of the Drugs Act. It must be held that patent or proprietary medicine should be understood according to the definition in section 3(h) of the Drugs Act. 20.. The appellate authority held that a Homeopathic medicine or drug is to be understood according to rule 2(dd) of the Drugs and Cosmetics Rules, 1955 (in short, the Drugs Rules ). He also held that Boroplus sold as Homeopathic antiseptic cream was not a Homeopathic medicine, because provings and therapeutic use thereof are not recorded in authoritative Homeopathic literature. According to him, for the same reasons the company s claim that Boroplus was a patent or proprietary medicine cannot be accepted. 21.. The questions involved in these applications are mixed questions of law and fact. It has neither been argued nor shown to us that the findings of fact arrived at by respondent No. 1 and the appellate authority are either perverse or without any basis except on one point, namely, that combination of Homeopathic medicines is not permitted. We are not required to make, as it were, a fresh as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ml, Calendula Officinalis .1 ml (for these four ingredients references have been made to different Homeopathic pharmacopoeia), rectified spirit .13 ml, lanolin, paraffin and perfume q.s. (for the last three ingredients no reference has been made to any authoritative book or any Homeopathic pharmacopoeia). On the carton as well as in the promotional literature it has been prominently displayed that it is a Homeopathic medicine. In this formula the proportion of boric acid is about .024 per cent w/w. In comparison, refer to P. 119 (illustration No. 1) of E.G. Thomssen s Modern Cosmetics where an admitted cosmetic, viz., lanolin cream contains about .294 per cent of boric acid w/w. So, mere such low presence of boric acid or any other antiseptic agent in Boroplus should not make it a drug in any sense of the term. From annexure G, Central Sales Tax Registration Certificate, it will be seen that Boroplus was mentioned as Homeopathic medicine. The same description can be found from the State Sales Tax Registration Certificate at annexure page 30. From the orders of assessment and the appellate order in respect of the periods in dispute, it can be clearly seen that the company was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Therefore, if the applicant-company s claim that up to October 15, 1987 Boroplus was sold as Homeopathic medicine, it must be shown that either it was a normal Homeopathic medicine as understood in common parlance or technical sense (both being identical) or it came within the inclusive part of the definition in rule 2(dd) of the Drugs Rules. Even the applicant-company itself has not claimed that Boroplus was generally sold from Homeopathic drug stores. Lanolin, paraffin and perfume by themselves cannot by any stretch of imagination be said to be Homeopathic medicines, as understood in common parlance or technical sense. In fact, being a combination of more than one ingredient, Boroplus, if at all, may claim the shield of the inclusive part of the definition in rule 2(dd) of the Drugs Rules, because combination of ingredients is expressly mentioned in that definition. But in order to come under the definition of rule 2(dd) a Homeopathic medicine should be a drug which is recorded in Homeopathic provings. The applicant-company has failed to prove that Homeopathic provings have recorded Himani Boroplus as a Homeopathic medicine. In order to come within the inclusive part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in Homeopathic provings, or its therapeutic efficacy had been established through long clinical experience as recorded in authoritative Homeopathic literature of India and abroad, and that it was prepared according to Homeopathic pharmacy techniques. I wish to discuss a question (not argued before us) for clearing confusion, if any. The question is: whether definition in rule 2(dd) will come into play for consideration of a product in terms of section 3(b) of the Drugs Act. In my opinion, rule 2(dd) is the definition which must be followed in rule 85-D under which drug licence was issued, because there is nothing repugnant in the subject or context. For interpreting section 3(b) in relation to a product claimed to be a Homeopathic medicine, application of rule 2(dd) is unavoidable and mandatory. Following Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 at page 433 it was held in Dr. Prakash Chandra Tiwari v. State of Madhya Pradesh AIR 1976 MP 50 that the Drugs and Cosmetics Rules, 1945 being made under the Drugs and Cosmetics Act, have full force and effect, as if they were part and parcel of the Act itself. In the case of Dr. Gourpada Sarkar v. West Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was merely due to the natural history of the disease or in other words to the lapse of time, or whether it was due to some other factor which was necessarily associated with the therapeutic measure in question. And Reported in [1999] 113 STC 474 (WBTT). if, as a result of these procedures we learn that the therapeutic measure employed produces a significant, though not very pronounced, improvement, we would experiment with the method, altering dosage or other detail to see if it can be improved. This would be seen the procedure to be expected of men with six years of scientific training behind them. [The reference of six years was obviously to medical graduates who spent six years to graduate.] ..................... It would be difficult to put the case for the clinical trial of new (or old) remedies more cogently or more clearly............... The basic requirement of clinical trials is comparison. In their most exacting form they call for concurrent controls , in other words a group of patients corresponding in their characteristics to the specially treated group but not given that special treatment. The question at issue, then, is whether it is proper to withhold from any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of correct apprehension and the judgment of the value of such symptoms for the necessities of curing are greatly increased, for the characteristic never shows itself in a single symptom, however complete it may be, since the individuality of the prover exercises an influence over the proving which easily misleads and since also secondary symptoms creep in together with alternate effects of inferior worth, and since in general the worth or worthlessness of most symptoms can be ascertained only by means of painstaking comparisons of the whole, never from the Materia Medica Pura just at the moment it is required without previous study. The significance of painstaking comparisons and unbiased proving can be appreciated from the fact that selection of the appropriate Homeopathic medicine chiefly depends on correct identification of characteristics or guiding symptoms, and that depends on unbiased proving by way of painstaking comparisons (see Dr. Kent s Lectures on Homeopathic Philosophy , lecture XXXII, the value of symptoms). Dr. Kent said in lecture XXVIII, under the title The Study of Provings , of Lectures on Homeopathic Philosophy (Memorial Edition, 1929, published by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ug manufactured according to Ayurvedic system of medicine. At the time of hearing before us, however, arguments were so made on behalf of the company, that the claim as Ayurvedic drug was relegated to the background (not wholly abandoned perhaps) and what was emphasised and highlighted was the claim that Boroplus should be treated as drug in the general sense within the definition in section 3(b) of the Drugs Act. For clarity of discussion, I am first taking up the original claim that since October 30, 1987 Boroplus was manufactured and sold as Ayurvedic drug. 24.. In the foregoing paragraph 18A I have already held that since September 15, 1964 when clause (a) was inserted in section 3 of the Drugs Act, Ayurvedic drug would go by the definition in section 3(a) and would not be comprehended in the definition of section 3(b), being the general definition of drug . From the discussion in the foregoing paragraph 12 it will be seen that Ayurvedic drugs as defined in section 3(a) of the Drugs Act were brought under the purview of the 1954 Act for the purpose of sales tax. The definition has already been reproduced (paragraph 18A). It is also an inclusive definition. That means, Ayur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be recorded must be the books specified in the First Schedule to the Drugs Act. Even if so, the product called Boroplus which is a combination of several ingredients may or may not ultimately produce the curative effect of individual ingredients, unless tried and experimented scientifically, according to the system of Ayurveda, and found to be so. The company furnished for our consideration a tube of Ayurvedic Boroplus with its carton. The tube announces that it contains extract of calendula 0.4 per cent, chandan 0.1 per cent, ushir 0.3 per cent, ghreetakumari 0.3 per cent, tulsi 0.8 per cent, jatamansi 0.1 per cent, saussurealappa 0.5 per cent, aguru 0.4 per cent, daruharidra 0.4 per cent, jasad bhasme (zinc oxide) 1.8 per cent, tankan amla (boric acid) 0.8 per cent, surasar (alcohol) 0.7 per cent, v/w and ointment vehicle q.s. This composition is given for a tube of 20 grams. Therefore, the totality of ingredients other than ointment vehicle comes to 6.6 gms. out of 20 gms. Hence, ointment vehicle itself represents 13.4 gms., being more than 200 per cent of other ingredients which are claimed to be Ayurvedic ingredients. No arguments was advanced and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the inclusive definition is the whole of the definition. In other words, there are cases where the word includes in a definition must be interpreted as means . I have examined Homeopathic and Ayurvedic Boroplus against the touch-stones of definitions in rule 2(dd) and section 3(a) on the basis of the general rule of interpreting the said definitions as extensive, as distinct from exhaustive. But in all the three definitions in rule 2(dd), section 3(a) and section 3(b) the interpretation should be, in my opinion, that the inclusive part is really the guiding principle of the definition; in other words, the word includes should be read as means . From the context in which the definitions are to be used, it is essential to interpret the definitions that way. From another angle also, the said interpretation should be adopted by all these three definitions for a different reason, namely, a drug, Homeopathic medicine or Ayurvedic drug as understood in common parlance or in technical sense, and as defined in the inclusive part are ultimately identical. The natural, or, technical, or original (common parlance) meaning of the terms, if any, and the meaning ascribed to them in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticeptic cream. The actual drug licence as an Ayurvedic product said to be issued in the year 1987 has not, however, been shown to us. It appears that at a subsequent stage the company gave a franchise for manufacture of Ayurvedic Boroplus to M/s. Kem Research Pvt. Ltd. The Ayurvedic drug licence for manufacture of Boroplus granted to the said other company for the period from March 3, 1993 to December 31, 1994 has been annexed to the supplementary affidavit as annexure VI at pages 268 and 269. From page 269 it appears that some of the ingredients are claimed to be mentioned in various books on Ayurveda. Those ingredients represent 0.49 per cent of the product. The percentage of surasar extract (alcohol) v/w is mentioned as 0.7 per cent. The said list of ingredients also mentions preservative q.s. and further mentions (which is significant) that the product is incorporated in stable ointment vehicle with lanoline, paraffin, odouriferous substances, etc., q.s. The said list of ingredients attached to the Ayurvedic drug licence does not claim that surasar extract, preservative or ointment vehicle are mentioned in any books on Ayurveda. But in letter No. DCWB/Ayv-832/Part/I/98 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in technical sense as a drug. Homeopathic medicine or Ayurvedic drug, or that the product has been clinically tried according to scientific principles or (in Homeopathy) provings were recorded and found to be a drug. If a product does not come within the relevant definitions, any number of such documents cannot make it a drug for the purpose of taxation under the 1954 Act. Some arguments were made that Boroplus was prescribed by some practitioners, and that those were sold by some resellers who possessed drug licences. These circumstances do not establish that Boroplus is a drug of any of the three aforesaid categories. Sometimes a doctor prescribes special food for a patient. Simply because a food has been specially prescribed, a food item does not become a drug or medicine. The primary object of a doctor is to render relief to the sufferings of his patient. He does not always restrict his prescription to those items which are strictly drugs. He may, for example, suggest that a cosmetic cream should be used for some relief. That does not mean that the cosmetic cream is a drug. To relieve pain on parts of bodies, doctors generally prescribe in suitable cases warm compress. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that without any proof of scientific clinical trials according to authoritative books on methods of clinical trials (or without provings in case of Homeopathic medicines), no claim can be entertained that Boroplus is a drug within the meaning of section 3(b). Reports and certificates relied on by the company (which we need not discuss in detail) did not follow the standard methods of provings or scientific methods of clinical trials. Having devoted my most anxious consideration to those documents, I have not been able to consider them either trustworthy or scientific. Mr. R.N. Bajoria, learned Advocate for the company relied on a decision of the High Court at Calcutta in the case of Union of India v. G.D. Pharmaceuticals Ltd. [2000] 118 STC 19 at 20 (regarding the product Boroline) dated December 5, 1996 in appeal No. 163 of 1996 arising out of C.O. No. 14000(W) of 1985. The Supreme Court of India by order dated September 15, 1997 dismissed the special leave petition preferred from the aforesaid judgment of the High Court. Mr. K.K. Saha, learned Advocate for the respondents, distinguished the aforesaid case. The case of Boroline as decided by the High Court at Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the company the following submission has been made: Reported in [2000] 118 STC 19 (SC). It is submitted that the said decision of this honourable Tribunal has got no relevance whatsoever in the instant case.......... We also think so. However, on August 26, 1998 the company filed a copy of order dated August 6, 1998 of the Supreme Court of India in the Boroline case (Civil Appeal No. 704 of 1993) along with an affidavit. By the said order, the judgment of this Tribunal in Commissioner of Commercial Taxes v. West Bengal Commercial Taxes Tribunal [1993] 89 STC 355 was set aside on the basis of concession made by the learned Solicitor-General appearing on behalf of the respondents. Since the case of Boroline is much different from the present case, the order of the Supreme Court does not assist the applicant-company either. 30.. Thus we have seen so far that none of the claims of the company, namely, that Boroplus is a Homeopathic medicine for a certain period, that it is an Ayurvedic drug for a certain period, that it is a drug in the general sense under section 3(b) of the Drugs Act, and that it is a patent or proprietary medicine under section 3(h) of the Drugs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igo . Mr. Bajoria, appearing for the company, relied on Union of India v. Garware Nylons Ltd. [1997] 106 STC 214 (SC); 1996 (87) ELT 12 (SC) and Hindustan Ferodo Ltd. v. Collector of Central Excise 1997 (89) ELT 16 (SC) on the point that onus of establishing that goods are classifiable under a particular tariff entry (here as cosmetic) lies on the revenue. As regards cosmetics, Mr. Bajoria, the company s counsel, relied on the book Modern Cosmetics -by E.G. Thomssen, possibly to establish that Boroplus cannot be treated as a cosmetic preparation. In our opinion, Mr. Bajoria s contentions on the method of interpretation of the entry and the onus of establishing that a product falls under a particular entry are correct. 30A. It is undisputed that Boroplus is a cream. In fact, it was clearly printed on the cartons of both Homeopathic and Ayurvedic Boroplus that it was an antiseptic cream. The relevant entry regarding cosmetics under our consideration includes creams of all descriptions and varieties. But merely because it is a cream, as a natural corollary it cannot be said that it is a cosmetic. From the relevant entry as well as the common parlance meaning of a cosmetic, there wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re normally associated with the word cosmetics reflects a change in public attitudes.................. Again: Many specialised products are used for skin care, particularly products called tonics and freshners-dilute alcoholic lotions that contain some astringent and, specially for use by children and young adults, some germicide usually to deal with the secondary infection of acne. Many products claim some skinlightening effect, but this is only appreciable when they contain those chemicals that have a real action on the melanin (a dark brown pigment in the skin), such as hydroquinone or related chemicals. It will appear from above that some cosmetics contain germicides, astringents as well as chemicals. Despite such contents, they are cosmetics. Regarding use of perfume in cosmetics (Homeopathic Boroplus expressly declared to be perfumed; though the Ayurvedic Boroplus does not expressly declare, it is clearly perfumed) the Britannica says: Perfumes are used in practically every cosmetic and toiletry item.......... Accordingly, it is not possible for us to differ from the findings of the authorities below that Boroplus was a cosmetic preparation. Consequently, it must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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