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TMI Blog2009 (4) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... ye, hair tonic, hair conditioner and hair lotion, tooth brush, tooth paste (whether medicated or not), tooth powder (whether medicated or not) and other dentifrices, mouth washes and deodorants but excluding those enumerated in any other entry. Under Notification No. 1109 FT dated April 20, 2005, the said entry 54 of the Fourth Schedule to the 1994 Act was broken into two parts for fixing the rate of tax to be levied on sales of those items. Such bifurcation was made in the manner as given below: Sl. No. Description of goods specified in Part A of the Schedule lV of the said Act Rate of tax (percentum) 54(i) Perfumes, depilatories, cosmetics, toilet articles and preparations (whether medicated or not) including hair cream, hair dye, hair tonic, hair conditioner and hair lotion. Twenty (ii) Tooth brush, tooth paste (whether medicated or not), tooth powder (whether medicated or not) and other dentifrices, mouth washes and deodorants Seventeen It has been claimed in this petition that the petitioner paid tax at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case is whether deodorant should be treated as an item falling under entry against serial No. 54(ii) of Notification No. 1109 FT dated April 20, 2005 and exigible to tax at 17 per cent or whether it should be treated as an item falling under entry against serial No. 54(i) of the notification as referred to above and become exigible to tax at 20 per cent. Additional CCT/WB while concurring with the observation of the assessing authority in his order dated December 4, 2007 observed as below: A close look of entry 54(ii) vindicates the point made by the learned assessing authority that the principle of 'ejusdem generis' makes the word deodorants in the same company of items related to mouth as enumerated in the entry 54(ii). Body deodorants whether in spray form or liquid form stand excluded from among the item of entry 54(ii). Deodorant is a preparation that destroys or masks unpleasant odour. Mouth washes and breadth sweeteners contain such substances, e.g., calcium iodate, thymol, peppermint or similar substance to mask or replace odours. The order of the learned assessing authority to that extent is confirmed. The Additional CCT/WB further went on to concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, shaving creams, facial creams, dusting powder, rouge, etc., detergent, common soap and bactericidal agents are not themselves class as cosmetics though they may be components of cosmetic mixture (page 316). Relying on this definition, it was held by the learned Additional CCT/WB that 'deodorants' should be treated as cosmetics and the learned assessing authority has correctly subjected the turnover for Rs. 49,03,024.98 to tax at 20 per cent taking body deodorant as being a cosmetic taxable under serial No. 54(i) of Schedule IVA of the WBST Act, 1994. The learned advocate appearing on behalf of the petitioner submitted that under no circumstances body deodorants being marketed by the petitioner should be treated as an item under entry made against serial No. 54(i). He drew our attention to the Commodity Classification and Code issued by the Directorate of Commercial Taxes, West Bengal. In the said code, cosmetics and allied goods have been placed under group head 08. Relevant commodity code number is 1910300 which includes following items under broad heading cosmetics and perfumes . The items mentioned therein are after shave lotions, cleansing milk, cosmetics, den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately under Commodity Code No. 1911200. The interpretation that the entry deodorant is restricted to mouth deodorants because of its association with mouth washes is difficult to accept. There has not been any differentiation in between mouth deodorants and body deodorants as it is evident from the entry itself. So because of such entry, there was no reason on the part of the respondent-authorities to levy tax at 20 per cent on the body deodorants marketed by the petitioner. The learned State Representative appearing on behalf of the respondentauthorities contested the application and submitted that what the petitioner is marketing is a body deodorant and in view of the findings of the authorities below, this should be treated as cosmetics and hence it should be taxed at 20 per cent. He relied on a various decisions of the honourable Supreme Court and different High Courts and also of this Tribunal. The cases referred to are Pardeep Aggarbatti v. State of Punjab [1997] 107 STC 561 (SC), Electro Enterprises v. Commissioner of Sales Tax, Maharashtra State, Bombay [1995] 98 STC 116 (Bom), Suvasini Beedies Pvt. Ltd. v. Additional Commercial Tax Officer, III Circle, Mangalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has gone to the kitties of the sellers, namely, the planters. Section 44 of the KGST Act makes it clear, that, when the assessing authority finds, at the time of final assessment, that the dealer has paid tax in excess of what is due from him, then only he will be entitled for refund of the excess tax. In the instant case in the assessment proceedings nowhere it is stated by the assessing authority that it is the petitioner who had paid tax due under the Act. There is a categoric statement of the assessing authority in the assessment proceedings of the assessee that, it is the sellers who had collected the tax. The sellers are coffee planters and the petitioner is only the purchaser. Keeping all these aspects of the matter and properly analysing the provisions of section 44 of the KGST Act, the authorities under the Act as well as the Tribunal has negatived the claim of the assessee. We are in full agreement with the findings and conclusions reached by the Tribunal. Therefore, the questions of law raised by the assessee require to be answered against the assessee and in favour of the Revenue. Consequently, all pending interlocutory applications are also rejected. Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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