9911796707
TMI Blog2009 (11) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... 30-11-2009 - RAMAN P.R. AND RAMACHANDRA MENON P.R. , JJ. The judgment of the court was delivered by P.R. RAMAN J. This is an appeal filed under section 62 of the Kerala Value Added Tax Act, 2004 challenging an order of clarification passed by the Commissioner of Commercial Taxes, Thiruvananthapuram, dated April 21, 2008 in exercise of the power conferred on him under section 94 of the Kerala Value Added Tax Act. The appellant is a company incorporated under the Companies Act and engaged in the manufacture of drugs by name Vicks available in oral tablet, balm and inhaler. Annexure A order was passed in an application put in by Geofrin Pettah, Margin Free Super Stockist, A.K.G. Road, Edappally, seeking for clarification as to the rate of tax of Vicks brand confectionery and balms; inter alia, contending that their medicines stand included in the entry 36 of the Third Schedule to the Kerala Value Added Tax Act. The Commissioner took the view that these items are sold over the counter in almost all retail shops and are available freely and in view of the clause 23 to the Rules of Interpretation appended to the statute, which according to him, differentiated these items a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding effect on the authorities subordinate to the Commissioner and since the appellant is the manufacturer of the products in respect of the clarification issued, it is a person aggrieved by the order passed under section 94(1). Now coming back to section 62, which provides for an appeal to the High Court and it confers a right of appeal to any person objecting to an order affecting him passed under section 59A . Therefore in order that a person gets right of appeal under section 62, he need only to show that he is objecting to the order because it affects him and not necessary that he himself should have sought for a clarification. Since in the factual situation, there cannot be any doubt that the appellant is affected by the order passed and impugned in this appeal, he is a person who has a right of appeal under section 62. True, in the matter of reckoning the period of limitation prescribed in the same section, the period of 90 days is to be reckoned from the date on which the order was served on the person, in the manner prescribed. But the fact that, the period of limitation starts from the date of service of the order cannot control the preceding part of the section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Boiled sweets, whether or not filled 1704.90.20 (d) Toffees, caramels and similar sweets 1704.90.30 The rate of tax applicable to entry 24(1) of S.R.O. No. 82 is 12.5 per cent. Admittedly, the rate of tax applicable under various entries of S.R.O. No. 82 is 12.5 per cent and if any of the goods are not specifically classified in any of the entry mentioned thereunder, the residuary article contained in entry 103 of S.R.O. No. 82/06 will take care of such items as well. The goods which are not specifically covered under any of the Schedules of the Kerala Value Added Tax Act, the rate of tax applicable will be 12.5 per cent. Therefore the point of dispute is as to whether the goods in question attract tax at the rate of four per cent or 12.5 per cent as the case may be, depending on as to whether the goods are classifiable under entry 36 of the Third Schedule to the Kerala Value Added Tax Act and if not, whether this is an item covered by the entries contained in the S.R.O. No. 82/2006 attracting entry 103 of S.R.O. No. 82/06, or any entry in the Schedule to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise, Hyderabad v. Richardson Hindustan Ltd. [2004] 9 SCC 156. The apex court merely confirmed the order of the Tribunal without any elaborate discussion. It was noticed, in common parlance, Vicks Vaporub is an ayurvedic medicine. One of the tests laid down in Shree Baidyanath Ayurved Bhawan case [2010] 1 GSTR 1 (SC) is thus satisfied by Vicks Vaporub. The Tribunal referred to its previous order in the case of Shree Baidyanath Ayurved Bhawan [2010] 1 GSTR 1 (SC) where the product Dant Manjan Lal, where a similar issue arose for consideration. The Tribunal found that there is no definition of ayurvedic medicine in the Central Excise Tariff Act though ayurvedic medicine is defined under section 3(a) of the Drugs and Cosmetics Act. But that definition cannot apply for the purpose of classification of the product under the Central Excise Tariff Act and the Central Excises and Salt Act. Thus in the absence of any definition contained, it proceeds to consider as to how the word was constituted in the popular sense. It was held that the products satisfied the test of common parlance be known as ayurvedic medicine . This is the decision which was approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the negative by referring to the earlier decision of the apex court in Commissioner of Central Excise, Calcutta v. Sharma Chemical Works [2003] 132 STC 251; [2003] 154 ELT 328 and quoted the following passage of that decision: . . . It is a settled law that the onus or burden to show that a product falls within a particular tariff item is always on the Revenue. The mere fact that a product is sold across the counters and not under a Doctor's prescription, does not by itself lead to the conclusion that it is not a medicament. . . In Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner, Central Excise, Nagpur [2006] 145 STC 200 (SC); [2006] 196 ELT 3 (SC), similar question arose for consideration regarding the interpretation as to whether Puma neem facial pack, Puma anti-pimple herbal powder and other relative products are ayurvedix preparation or mere cosmetics. The apex court applied the twin test for determination of classification of the product, namely, (1) in the absence of any definition, the words should be considered as far as possible in the original popular sense how the common man and persons dealing with it understand, to be classified as ayurvedic medic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
