9911796707
TMI Blog2003 (8) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... t-assessee is a dealer in kajal, a product of Paramount Kumkum Private Limited, Gujarat State. According to the assessee, kajal is an ayurvedic preparation falling under entry 79 of the First Schedule to the Act taxable at the rate of 8 per cent. The assessing authority took the view that kajal is a cosmetic falling under entry 127 of the First Schedule taxable at the rate of 20 per cent. This was confirmed by the Deputy Commissioner (Appeals), Agricultural Income-tax and Sales Tax, Ernakulam in appeal filed by the assessee. However, in second appeal filed by the assessee, the Sales Tax Appellate Tribunal, relying on an order of the Full Bench of the said Tribunal in T.A. No. 156 of 1985 took the view that kajal is an ayurvedic preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayurvedic drugs and that one of the items in the list accompanying the licence is Shingar Kajal. The counsel also submitted that the item kajal sold by the assessee is prepared according to the specifications given in ayurvedic texts and its essential ingredients are medical and curative. The counsel further submitted that it protects from many ailments tending to affect the eyes and that it will come within the meaning of the term drugs in the Drugs and Cosmetics Act, 1940. The counsel also relied on the decision in Ramachandran's case [1998] 6 KTR 65 (Ker). The counsel further relied on the decision of the Bombay High Court in Commissioner of Sales Tax v. Western India Chemical Co. [1985] 59 STC 313. We have considered the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, it has to be treated as a cosmetic. It is not the mere user of the commodity that matters, for, a particular commodity may be used for multi purposes. How the commodity is understood in common parlance is the decisive test though the user of the commodity is also relevant in certain cases. We find that the Division Bench of the Bombay High Court in Western India Chemical Co.'s case [1985] 59 STC 313 has considered the question as to whether jai kajal can be treated as a cosmetic falling under entry 19 of the Schedule E of the Bombay Sales Tax Act, 1959. The court noted that a cosmetic is a preparation which is primarily used for the beautification of the body. The Division Bench on the basis of the evidence available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act regarding classification of the goods and the question was whether Himtaj oil manufactured by respondent was ayurvedic medicine under sub-heading 3003.30. Though this was accepted by the Assistant Collector in appeal the Commissioner (Appeals) held that there was no evidence to show that common man used the product as a medicine. The Assistant Collector relied on the Drugs licence issued by the Drugs Controller, letter issued by the Superintendent of Ayurvedic department, SSI certificate obtained by the respondents for manufacturing ayurvedic oil under a drug licence, etc. The Supreme Court observed as follows: In this case the report of the Range Officer shows that dealers, wholesalers, retailers, customers, chemists and dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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