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TMI Blog2020 (1) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ke a different view. It is established that all attributes of mosquito repellents relevant for a judicial enquiry of this nature are found in the product in question. This is not a fit case to judicially review the impugned order. Consequently, we decline to exercise our discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner - there is no palpable infirmity in the classification of the product in the order passed by the Appellate Authority. Petition dismissed. - WRIT TAX No. - 1308 of 2019 - - - Dated:- 17-1-2020 - Biswanath Somadder Versus Ajay Bhanot JJ. For the Petitioner : Atul Gupta, Abhishek Kumar Tripathi For the Respondent : A.S.G.I.,Ashok Singh ORDER [PER: HON'BLE AJAY BHANOT, J.] 1. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, being aggrieved by the order dated 19.08.2019 passed by the Appellate Authority for Advance Ruling for Goods and Services Tax, Uttar Pradesh. The order assailed in the writ petition dated 19.08.2019 has been passed under Section 101 of the Central Goods and Services Tax Act, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in preceding paragraphs, the appellant declare prominently on the packing of the goods under reference that it is mosquito repellent cream . The advertisement and publicity of these goods is also done as a mosquito repellent. It would also not be out of place to mention that the appellant's own website www.dabuar.com, describes Odomos as a 'mosquito repellent'. No doubt, that characteristic of these goods, which aid in prevention of vector borne diseases by preventing mosquito bites, is also mentioned; however, it is a matter of common knowledge that public or market identity of the product is as a mosquito repellent. 8. After investigation into the characteristics of the product as understood in common parlance or as perceived by the common-person or the market and its usage, the Appellate Tribunal set forth the following findings :- 13.6. All of the above to state the common truth that the primary motive of the common person, for using materials like the subject goods, is to save and protect themselves from mosquito bites even if there is no or negligible incidence of mosquito borne diseases in their localities. This is also borne out by the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cream. 12. The Appellate Authority invalidated the argument to classify the product under heading no. 3004909 under Heading No.3004 in the following terms: 13.4. ...Undoubtedly, the description under heading no. 38089191, i.e., Repellents for insects such as flies, mosquito is far more specific as compared to the description under the other heading under consideration, i.e., heading no.30049099 which is Other (meaning medicaments other than all those explicitly specified in the other sub-headings of heading no.3004). 13. Finally, in the wake of the aforesaid reasoning, the Appellate Authority conclusively ruled as follows :- In view of the foregoing discussions and findings we hereby uphold the Ruling in Order No.25 dated 20.02.2019 of the Authority for Advance Ruling that Odomos is well covered under Chapter 38 of Customs Tariff Act and is classified under HSN 38089191. 14. The contours of an enquiry into classification of goods, have been delineated by the authority. The judicial pronouncements on the subject are consistent and have laid down the law with clarity. 15. The revenue raising intent of the taxing statute for which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Act seeks to serve and the purpose of the amendment brought about. The task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathematical formula. It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. It is also idle to expect that the draftsman drafted it with divine prescience and perfect and unequivocal clarity. Therefore, court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result. In Manmohan Das v. Bishun Das a Constitution Bench held as follows: .. The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out. 19. The Hon'ble Supreme Court also noticed the purpose of fiscal statutes while undertaking the exercise to determine the classification of produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consumer alike provided a definitive guide to understanding the nature of the entry fell for consideration before the Hon'ble Supreme Court in Indian Aluminium Cables Ltd. v. Union of India and others , reported at (1985) 3 SCC 284. The Hon'ble Supreme Court in Indian Aluminium Cables Ltd. (supra) ruled thus :- 12. This Court has consistently taken the view that, in determining the meaning or connotation of words and expressions describing an article in a tariff schedule, one principle which is fairly well settled is that those words and expressions should be construed in the sense in which they are understood in the trade, by the dealer and the consumer. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention. 23. The absurdity of adopting the technical meanings over common parlance in fiscal statutes was highlighted by the Hon'ble Supreme Court in Reliance Cellulose Products Ltd. Hyderabad v. Collector of Central Excise, Hyderabad-I Division, Hyderabad reported at (1997) 6 SCC 464 by holding as under: 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Naturalle Health Products (P) Ltd. v. Collector of Central Excise, Hyderabad, reported at (2004) 9 SCC 136, by holding as follows: 42 . We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff schedules must be construed as far as possible in their ordinary or popular sense, that is, how the common man and persons dealing with it understand it. If the customers and the practitioners of Ayurvedic medicine, the dealers and the licensing officials treat the products in question as Ayurvedic medicines and not as Allopathic medicines, that fact gives an indication that they are exclusively Ayurvedic medicines or that they are used in Ayurvedic system of medicine, though it is a patented medicine. This is especially so when all the ingredients used are mentioned in the authoritative books on Ayurveda. As rightly contended by the counsel for the appellants, the essential character of the medicine and the primary function of the medicine is derived from the active ingredients contained therein and it has certainly a bearing on the determination of classification under the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See Medley Pharmaceuticals Ltd. v. CCE and Customs (SCC p. 614, para 31) and CCE v. Shree Baidyanath Ayurved Bhavan Ltd.] The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of ice-cream . These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and subject of which is completely different. 28. The definitions of terms in statutes having different objectives, purposes and schemes cannot be applied mechanically to fiscal statutes. The Hon'ble Supreme Court in Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracteristic of the product, the hallmark of its identity, and also the defining usage feature of the product. 37. There is no scientific or expert evidence in the record to support the pleading or the case of the assessee / respondent that the NNDB imparts its essential character to the product. 38. No material / supporting scientific evidence from the record was shown to this court to establish that the creation of NNDB denudes the essential mosquito repellent quality of DEET in the product. The material in the record supports the conclusion by the authority below that the mosquito repellent characteristic of DEET is retained in the final product and forms its essence. The Appellate Authority also opined that DEET is a pesticide. 39. The plea of the assessee is a bald defence raised after the revenue had discharged its burden regarding the composition and nature of the product. 40. The holding of the Appellate Authority that the active component of the product is DEET and that NNDB is its improved version cannot be called perverse. The chemical composition test created by the Hon'ble Supreme Court, has been correctly applied by the Appellate Authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. 45. Under rule 3 of the general interpretation rules, resort cannot be had to a general entry called others or any other heading when the product clearly falls under a specific classification heading. 46. In Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved Bhavan Limited , reported at (2009) 12 SCC 419, the Hon'ble Supreme Court while interpreting the Rule 3 (a) of the aforesaid Rules held as under: 56. There is no doubt that a specific entry must prevail over a general entry. This is reflected from Rule 3( a ) of the general Rules of interpretation that states that Heading which provides the most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt scrutinizes the correctness of the decision making process and not the decision itself. The concern of the Court exercising powers of judicial review is procedural propriety in the decision making process. While exercising powers of judicial review the Court has to find whether the decision making authority acted within its jurisdictional limits, committed errors of law, adhered to the principles of natural justice or acted in breach thereof, and whether the decision is perverse or not. The powers of judicial review are thus distinct from powers of an appellate court. The order of Appellate Authority can be judicially reviewed and not appealed against. 54. The courts exercising judicial review do not ordinarily substitute the decision of the authority by their judgment. Merely because two views are possible, a court sitting in judicial review shall not exercise its discretion in favour of an alternative view to that of the authority. 55. From the records pleadings and the arguments of the learned counsel for both the parties, this Court finds that the petitioners were given full opportunity of hearing before the authorities below. The Appellate Authority as well as Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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