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TMI Blog2019 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... he specific entry under the schedule, the question of taking aid of the Central Excise Tariff Act, 1985 does not arise in light of the judgment delivered by the Division Bench of this Court in the case of State of M.P. Vs. Vicco Products (Bombay) [ 2017 (5) TMI 376 - MADHYA PRADESH HIGH COURT ] and therefore, this Court is of the opinion that the products manufactured by the applicant company as it falls in Schedule II Part III at Entry No.41 and 49, tax has to be levied at 12% as it does not fall under Schedule II Part IV at Entry 11, the duty is certainly not at all levied at 8%. Reference answered. - Shri Justice S.C. Sharma And Shri Justice Virender Singh JJ. For the Petitioner : Shri Amol Shrivastava, learned counsel For the Respondent/State : Shri Ritesh Kumar Gupta, learned counsel ORDER PER S.C. SHARMA, J. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of T.R. No.50/2018 are narrated hereunder. 02. Present tax reference has been received under Section 70 of the M.P. Commercial Tax Act, 1994. The M.P. Commercial Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured by the applicant company are manufactured under the valid drugs license issued by the competent authority with proper compliance of the conditions of such license and the provisions of Drugs and Cosmetics Act and, therefore, they should be treated as products as drugs and medicines under the relevant entries. 07. The Division Bench of this Court in the case of State of Madhya Pradesh Vs. Vicco Products (Bombay) (W.A. No.102/2006) has dealt with similar issue. The judgment delivered by the Division Bench in paragraph Nos.2 to 21 reads as under:- 02. The learned Single Bench has relied upon an order passed by the Division Bench of this Court reported as (1998) 111 Sales Tax Cases 319 (Commissioner of Commercial Tax vs. Dawar Brothers) to hold that Vicco Vajradanti tooth paste and powder or Vicco Turmeric cream possess medicinal properties, therefore, fall under the category of medicines and drugs and not the cosmetics, therefore, not chargeable to Tax as claimed by the Revenue. 03. The petitioner filed quarterly returns for the assessment year 1989-90 before the respondent No.1 showing the figure of sale of the said products in the State of Madhya Pradesh. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had earlier filed a suit before the Civil Judge, Thane challenging the classification made by the Asst. Collector, Central Excise. The suit was decreed on 06.05.1982. The First Appeal No. 613 of 1982 was dismissed on 27.04.1988 by the Division Bench of Bombay High Court. It was held that the products manufactured by the writ petitioner are medicines and not cosmetics. The Court recorded the following finding:- However, a point which does create considerable difficulty is the question, whether on the footing that these two products would be covered by Heading 14E, whether they are wholly exempt as exclusively Ayurvedic medicines. This averment is not found in the Plaint and hence not specifically traversed and therefore, no issue is specifically framed in this behalf. In the opinion of this Court it may not be sufficient only to aver and prove that these two products are medicinal products using Ayurvedic ingredients or even that the thereaputic ingredients used in the products are hundred percent ingredients or in other words ingredients known to Ayurveda. No where has the trial Court given an opinion as to what is understood by the phrase exclusive Ayurvedic medicine . One can vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court was in respect of the entries for the purpose of levy of excise duty under the Tariff Heading 14 E of the First Schedule of the Central Excise and Tariff Act 1944 or the classification under the Central Excise Tariff Act, 1985 in respect of classification under Chapter 30 or Chapter 33 of the Central Excise Tariff Act, 1985. None of the Judgments referred to by the writ petitioner relates to classification for the purpose of sales tax under the Act. 09. The learned counsel for the respondent argued that once the Hon'ble Supreme Court has given a categorical finding that the products of the writ petitioner are medicines, therefore, such issue cannot be reopened or re-examined. It is also argued that relying upon the order of Bombay High Court, a Division Bench of this Court had already given a finding that products manufactured by the writ petitioner are the medicinal products, therefore, such question cannot be re-examined in the present appeal. It is also argued that this Court is bound by the decision of the coordinate Bench relying upon an order passed by the Supreme Court in the cases mentioned above. 10. We have heard the learned counsel for the parties and find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Similarly, in respect of tooth paste or powder, the Entry 2 of Part III of Schedule II of the Act attract tax @ 12 per cent. Again, there is no classification on the basis whether it is a medicine or a cosmetic. The tooth paste or tooth powder, whether it is a medicine or a cosmetic will attract tax @ 12 per cent i.e. the classification specified in the Act itself. 12. The argument that the product manufactured by the petitioner are required to be given trade meaning and treated as such, is factually incorrect. Such situation would require examination, if the Statue is silent. In the event, the Statue contemplate particular rate of Tax in respect of a product, which does not admit any debate, then rate of tax applicable will be as specified in the Statute alone. Since the statutory provisions were not brought to the notice of the Court, the judgment of this Court in Dawar Brothers case is a judgment per incuriam . 13. The question as to when a judgment can be said to be per incuriam has been interpreted by the Supreme Court time and again. The Constitution Bench in a judgment reported as A.R. Antulay v. R.S. Nayak , (1988) 2 SCC 602 held as under: 42. It appears that when this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed without any argument, without reference to the crucial words of the rule and without any citation of the authority. The Court held as under:- 40. Incuria literally means carelessness . In practice per incuriam appears to mean per ignoratium . English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority . ( Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293] ). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [(1962) 2 SCR 558 : AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng v. Bristol Aeroplane Co. Ltd. , 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. see also Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. , (1941) 1 KB 675 : (1941) 2 All ER 11. For a Divisional Court decision disregarded by that court as being per incuriam, see Nicholas v. Penny , (1950) 2 KB 466 : (1950) 2 All ER 89.] . A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties [ Morelle Ltd. v. Wakeling , (1955) 2 QB 379 : (1955) 1 All ER 708 (CA)] , or because the court had not the benefit of the best argument [ Bryers v. Canadian Pacific Steamships Ltd. , (1957) 1 QB 134 : (1956) 3 All ER 560 (CA) Per Singleton, L.J., affirmed in Canadian Pacific Steamships Ltd. v. Bryers 1958 AC 485 : (1957) 3 All ER 572.] , and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority [ A. and J. Mucklow Ltd. v. IRC , 1954 Ch 615 : (1954) 2 All ER 508 (CA), Morelle Ltd. v. Wakeling , (1955) 2 QB 379 : (1955) 1 All ER 708 (CA), see also Bonsor v. Musicians' Union , 1954 Ch 479 : (1954) 1 All ER 822 (CA), where the per incur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the provisions under the Central Excise Tariff Act, 1985. The classification of a product under a statute cannot be read into another statute. Each statute has to be interpreted on the basis of the provisions contained therein. Therefore, classification of the products in the said judgments dealing with the Central Excise Laws are not relevant for examining the classification of the products under the local Act, which have specifically included face cream under the Entry of Cosmetics and tooth paste and tooth powder under the Entry of Toilet articles. 21. In view thereof, we find that the order passed by the learned Single Bench cannot be sustained. It deserves to be set aside and is ordered to be set aside and the writ petition is dismissed. Consequently, the Department shall proceed with the decision on the show cause notice in accordance with the law. 08. The aforesaid judgment makes it very clear that the classification of the products under the statute cannot be read into other statute. Each statute has to be interpreted on the basis of provisions contained therein and therefore, once M.P. Commercial Tax Act includes the articles manufactured by the applicant under Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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