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TMI Blog2020 (1) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 (12) TMI 366 - ALLAHABAD HIGH COURT] ? - HELD THAT:- We have gone through the cited judgment of the Hon ble High Court in the case of M/s. Balsara Hygiene Products Ltd. and observe that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948. As far as the third issue raised by the Applicant is concerned, i.e., that the order of the AAR was based on extraneous considerations, we observe that the appellant has failed to detail such alleged extraneous consideration, nor do we find anything in the impugned order which may give rise to such an inference. We, therefore, disregard this ground, apparently being an unsupported and vague charge. Classification of product Odomos? - HELD THAT:- Undoubtedly, the description under Heading No. 3808 91 91, i.e., Repellants 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. 3004 90 99 which is Other (meaning medicaments other than all those explicitly specified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act' and the 'UPGST Act', respectively) by M/s. Dabur India Ltd., Khasra Nos. 2834, 2835, 2836, Amka Road, Dhoom Manikpur, off NH-91, Dadri, Gautam Buddha Nagar, U.P.-203207 (hereinafter referred to as the "Applicant") against the Advance Ruling Order No. 25, dated 20-2-2019 by the Authority for Advance Ruling, Uttar Pradesh. At the outset, we would like to make it clear that the provisions of both the CGST Act and the UPGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the UPGST Act and vice versa. Brief facts of the case 1. M/s. Dabur India Ltd., Khasra Nos. 2834, 2835, 2836, Amka Road, Dhoom Manikpur, off NH-91, Dadri, Gautam Buddha Nagar, U.P.-203207 (hereinafter called the 'applicant') is a registered assessee under GST having GSTN : 09AAACD0474C1Z3. 2. The Applicant is a Private Limited Company, resident in India, and is engaged in the manufacture of various Fast-Moving Consumer Goods (FMCGs) under various product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 206 (S.C.) and 'CCE v. Wockhardt Life Science Ltd'., 2012 (277) E.L.T. 299 (S.C.). Therefore, they submitted that the product odomos is classifiable under sub-heading 3004 90 99 as medicament. Further, they assured to submit within two days literature regarding NNDB as drug. Further, through e-mail dated 17-7-2019, the applicant forwarded additional written submissions with a copy of literature showing the active ingredient DEET having been mentioned in US Pharmacopoeia and Indian pharmacopoeia, Allahabad High Court decision in the matter of 'M/s. Baidyanath Ayurved Bhawan (P) Ltd. v. CST' reported in 2004 NTN (Vol-24) 436, High Court Delhi decision in case of 'M/s. Mahinder Kumar Chaudhary v. Balsara Hygiene Products Ltd.' dated 19-12-2001 and copy of VAT invoices in State of Delhi on the subject product odomos showing as medicine only. Discussion and Findings 10. We have gone through the submissions made by the applicant and examined the detailed explanation submitted by them. We observe that the appeal in the instant case is mainly based upon the grounds stated in Para 7 above. The appellant vide his application has prayed : (i) To modify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authority for Advance Ruling, i.e., Heading No. 3808 91 91 (as 'mosquito repellant', which itself is a sub-sub-heading under the sub-heading of 'insecticide' in the main heading). We have gone through the cited judgment of the Hon'ble High Court in the case of M/s. Balsara Hygiene Products Limited reported at 1986 UPTC 367 (All.) and observe that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948. The description of the goods under the said entry reads as - "Medicines and pharmaceutical preparations Including Insecticides and Pesticides" (emphasis supplied). Thus, the said entry included insecticides and pesticides within the broader category of medicines and pharmaceutical preparations. Here it is also pertinent to note that, as also mentioned earlier in this paragraph, 'insecticides' and 'pesticides' are classified under Customs Tariff Heading No. 3808 and 'mosquito repellants' are further classified therein as 'insecticides'. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d anything in the impugned order which may give rise to such an inference. We, therefore, disregard this ground, apparently being an unsupported and vague charge. 13.4 Now, we come to the final and all important issue of the correct classification of the appellants' product "Odomos" in terms of the Customs Tariff. We observe that the Applicant was clearing the same goods i.e. 'Odomos' as mosquito repellent under Chapter Heading 3808 before the advent of GST, i.e., under the Central Excise regime. Further, there is no change in the composition or intended usage of these goods after the introduction of GST and the packing thereof bears a clear declaration that the product therein is a mosquito repellent cream. Regarding the technical aspect of classification, "The General Rules for the Interpretation of Import Tariff' stipulate [in Rule 3(a) thereof] that the heading which provides the most specific description shall be preferred to headings providing a more general description. Undoubtedly, the description under Heading No. 3808 91 '91, i.e., "Repellants for insects such as flies, mosquito" is far more specific as compared to the descrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mfort to humankind and individuals want to safeguard themselves of the irritation and itchiness of a mosquito bite. This holds true for almost everybody anywhere on the planet, irrespective of whether the place/ locality they inhabit has prevalence of mosquito borne diseases or not. Moreover, even in the past, when the role of mosquitoes in spreading of certain diseases was not known, human kind has always endeavoured to prevent mosquito bites by using mosquito nets and paste or smoke of certain herbs and spices. 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 odomos is not normally prescribed as a medicine by a registered medical practitioner and is available in stores and establishments of all types including "kirana stores", their sale not being restricted to chemists/ druggists alone. It neither controls the disease for which mosquitoes are carrier nor develops preventive characteristics inside human b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products achieve their desired result by nerve poisoning, stomach poisoning, asphyxiation or by odour, the subject product prevents mosquito bites by interfering with their olfactory receptors. Firstly, we observe that there is no authoritative literature which declares that mosquito repellents can work only in the above stated manner and any product preventing mosquito bites through any other method will not fall in the category of repellents. In fact, olfactory receptors are the odour perceiving receptors of mosquitoes and by interfering with their function, their ability to smell out the human body is impaired. Thus, the factor of odour is brought into play by the subject product, albeit indirectly. Furthermore, since, in the above manner, the subject goods make the human body unattractive, as a source of food, to the mosquito, it effectively repels a mosquito from a human being, thereby working as a mosquito repellent. Above all is also the test as to how they themselves identify & sell the product in the market i.e. "mosquito repellents". 13.9 In light of the foregoing discussions, we observe that all the factors relevant for classification under the Customs Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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