9911796707
TMI Blog2007 (2) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee at Gujarat and sold in Uttar Pradesh after receiving by stock transfer is to be taxed under the entry all kinds of cosmetics at 15 per cent and not as ayurvedic medicine at eight per cent. The assessing authority on remand found that Boro Soft is a cosmetic and will fall within the entry of all kinds of cosmetics and preparation under notification dated September 7, 1991. The Joint Commissioner (Appeal), however, found that Boro Soft is used as medicine and that the Joint Commissioner (Drugs), Foods and Drugs Control Administration, Gujarat, has certified that the Boro Soft cream is an ayurvedic drug. The Tribunal allowed the second appeals filed by the department. In fact, the matter is squarely covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise v. Sharma Chemical Works . . . .05 [2003] 132 STC 251 (SC); [2004] 24 NTN 28 (SC), Union of India v. G.D. Pharmaceutical Limited [2000] 118 STC 19 (SC), and a judgment of the Madhya Pradesh High Court in Commissioner of Commercial Tax, M.P. v. Dawar Brothers, Indore [1998] 111 STC 319; [1988] UPTC 1211 in support of his submission. Shri B.K. Pandey, the learned Standing Counsel for the Department, however, has relied upon Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner of Central Excise, Nagpur [2006] 145 STC 200 (SC); [2006] 196 ELT 3 (SC) in which the twin determination tests were reiterated to find out whether the item is a medicament or cosmetic product. These twin tests laid down in Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Only those who want to treat a particular ailment will go for the particular product of the appellant. The use of a product by the customers, i.e., how the consumers take to a product is a very useful method of determining the classification of products. What is to be seen is whether the products are likely to be in common use by normal consumers. Common parlance meaning and understanding is a strong factor in the determination of classification of products. One need not resort to scientific or technical meaning of the terms used. 5.. So far as the other test is concerned, the learned counsel for the appellant has placed on record material from the ayurvedic texts or pharmacopoeia in support of each product which is subject-matter of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic. In Puma Ayurvedic Herbal (P.) Ltd. [2006] 145 STC 200; [2006] 196 ELT 3, the Supreme Court held that in order to find out whether the item is a medicament, it is not necessary that the item may be sold only under the doctor's prescription. A medicinal preparation may be purchased across the counter. The common parlance test however has to be applied along with the other test, namely, whether the ingredients used in the product are mentioned in the authoritative text books of ayurveda. The presence of organic ingredient mentioned in the wrapper by itself will not make a cosmetic an ayu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
