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TMI Blog2001 (11) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... all the three items were assessed to tax at the rate of 10 per cent. The dealer filed First Appeal before the Deputy Commissioner (Appeal), Trade Tax. The Deputy Commissioner concurred with the claim of the revisionist and allowed the appeal. The tax liability was reduced accordingly. The department felt aggrieved and filed Second Appeal before the Trade Tax Tribunal, Ghaziabad. 2. The Trade Tax Tribunal by the impugned judgment and order dated 14th May, 2001 partly allowed the appeal. The Tribunal agreed with the finding of the First Appellate Authority that "Painjon" was medicine of the schedule and was taxable at the rate of 7.5 per cent (with additional tax). 3. So far as taxability of "Swad" tablets and "Bubble Gum" is concerned, the Tribunal held that "Swad" tablet was not confectionery item and it was unclassified item and was liable to tax at the rate of 10 per cent (with additional tax). "Bubble Gum" was also held not to be sweet meat or confectionery item. The Tribunal, therefore, held that the sale of "Bubble Gum" was taxable as unclassified item and was to be taxed at the rate of 10 per cent. 4. Aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal before the Tribunal categorically stating that the first appeal was decided long back i.e. on 15th May, 1998 and copy of the judgment in the said appeal was served upon the departmental authorities on 25th July, 1998 and an endorsement to this effect was made. Therefore, it was wrongly stated before the Tribunal that the true copy of the judgment of the First Appellate Authority was received by the office of the respondent authority on 25th August, 1998. Though Sri B. K. Pandey, learned Standing Counsel has stated that he is not aware of the correct facts but it is argued that there is no affidavit in support of such allegation and besides this the copy of the judgment filed with the memo of revision shows that Second Appeal No. 357 of 1999 was decided by the Tribunal. This clearly shows that even if defective Appeal No. 31 of 1998 was registered the defect was subsequently removed and regular Appeal No. 357 of 1999 was registered. There is substance in the submission of Sri B. K. Pandey, learned Standing Counsel. What the Tribunal has decided is not the defective Appeal No. 31 of 1998 but the regular Appeal No. 357 of 1999. Even if the appeal was filed beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 10 of the Act. It is expedient that different Benches should not take different views on the same question of law otherwise there would be an occasion of judicial anarchy. At least subordinate authorities would be confronted with difficulty as to which of the decisions of the Tribunal should be followed. It may be pointed out that sub-section (9) of Section 10 of the Act provides that the members of the Tribunal shall sit in such benches of one, two or more members, as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub-section (10) and the rules, be allotted to them, by order or in accordance with the directions of the President of the Tribunal. Sub-clause (d) (i) of sub-section (10) of Section 10 of the Act provides that the President may, if he so thinks fit direct an appeal to be heard and decided by a larger bench. In view of these provisions of law if the Trade Tax Tribunal in question did not agree with the view taken by another bench of the Tribunal as already pointed out above it would have been proper for the Tribunal in question to have referred the matter to the President for constituting a larger bench so that there may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the notification under which exemption was claimed the Hon'ble Supreme Court held that "it is true that dictionary meaning of the word 'sweetmeat' is very wide and any food which is sweet and rich in sugar can be described as 'sweetmeat'. Toffee is a confection of sugar and other materials and being rich in sugar would be 'sweetmeat' in its wider sense. But for deciding whether toffee is 'sweetmeat' as contemplated by the exemption Notification, what is required to be considered is the object of the notification and the context in which that word is used in the notification. 13. A close reading of the Notification discloses that the State intended to give benefit of exemption or reduction in rate to those new industrial units and existing units undertaking expansion, diversification or modernization which were to make substantial capital investment.....................Entry 18 of Annexure II is also suggestive of the same intention. The items mentioned therein viz., 'sweetmeat', 'namkin', 'reori' and 'gazak' are usually prepared by shopkeepers and restaurants for selling them to their consumer-cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;. On the other hand, it may be noted that Chapter 17 of Central Excise Tariff Act, 1985 relates to Sugar and Sugar confectionery and at Sl. No. 1704.10 the entry is "Chewing Gum" whether or not with Sugar quoted. Thus, the Central Excise Tariff Act treats the "Chewing Gum" as confectionery and the said Act being the Central Act would be applicable to the State of U. P. In my view, therefore, though "Chewing Gum and Bubble Gum" cannot be treated to be "sweetmeat" but it is certainly an item of confectionery and is to be taxed as such. Undisputedly the rate of tax on confectionery is 7.5 per cent (with additional tax). 18. Another ground on which the Tribunal took the view that "Bubble Gum or Chewing Gum" is not "Sweetmeat" or confectionery is that the Commissioner of Sales Tax in a decision given under Section 35 in the case of M/s. Newtrin Chewing Gum Products Company Pvt. Limited, S.T.I. 1985 page 21 held that "in chewing gum sugar is an almost insignificant.............over it is not eatable. Its use is entirely different. Children use it just for a fun and athletes for controlling the breath. In common parlan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic Siddha and Unani systems of medicine specified in the First Schedule." 20. Accordingly, ayurvedic, siddha and unani drugs include all medicines manufactured exclusively in accordance with the formulae prescribed in the authoritative books of these systems of medicines and specified in the First Schedule of the Drugs and Cosmetics Act, 1940. "Ayurvedic formullary of India" has stated in its preface, introductory chapter and the "Legal Notice" chapter that the ayurvedic products should be prepared strictly as per formulae given in the authoritative text books or as per formulae given in it. The petitioner has not pointed out the formula of "Bhav Prakash" which has been adopted for manufacturing "Swad". It is not manufactured strictly in accordance with the formulae given in it"........................................... "10. The true character of a preparation cannot be ascertained from the description of the product in the advertisement or label as an ayurvedic medicinal preparation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicine. To decide this, one shall have to look to the character of the constituents and the use of the product. It was also held in that case that mere obtaining licence under certain Acts and getting clearance under certain other Acts cannot entitle a person to obtain benefits under the Act. I respectfully agree with the aforesaid observations of the Gujarat High Court in Dendwala's case (supra) It has been pointed out by the learned Standing Counsel that the Tribunal has observed in its order about the constituents of the "Swad" tablets and it is pointed out according to the observation of the Tribunal that the ingredients of the commodities in question are "Black" Salt, "Senddha" salt, "Nambuka Namak", "Kali Mirch", "Jeera" "Ajwain", "Sonth" "Peppermint" and sugar etc. True it is that the above ingredients of the "Swad" tablets are mentioned in the order of the Tribunal but that would not make it an Ayurvedic medicine unless it is shown that it is prescribed by the Physician in a particular ailment or it is beneficial in certain types of ailments. Sometimes confectionery items ..... X X X X Extracts X X X X X X X X Extracts X X X X
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