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TMI Blog2024 (8) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that specific therapeutic items are included for beneficial tax treatment. The clear separation of excluded and included items brings out the distinct nature and purpose of the products, with medicated ointments being recognised for their essential therapeutic roles. Even though antiseptic creams are excluded from Entry 41, medicated ointments would be included due to the use of the word but . The word but is a clear indication that the legislature intended to include, as an exception, medical ointment, even though certain medicated ointments may be categorised as antiseptic creams. If a product is more than just an antiseptic cream and qualifies as a medicated ointment, it will be included in Entry 41. Whether BPAC is to be classified as a medicated ointment or not? - HELD THAT:- The onus was on the Revenue to disprove the Respondent s claim and establish that BPAC is solely an antiseptic cream. To meet this burden, the Revisionist needed to provide compelling evidence that BPAC s primary and exclusive function was antiseptic in nature. This required a detailed analysis and presentation of the product s composition and therapeutic effects, demonstrating that any additional ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. The concept of perversity in legal contexts refers to a situation where a decision or finding is so unreasonable or contrary to the evidence that no reasonable person could have arrived at it. When dealing with administrative and judicial reviews, including tax and regulatory matters, perversity is a crucial ground upon which decisions can be challenged or revised. However, for perversity to be successfully invoked, certain legal thresholds and evidentiary standards must be met - Simply disagreeing with the Tribunal s decision without substantiating such disagreement with concrete evidence or legal arguments does not meet the threshold for invoking perversity. In Cadbury India [ 2019 (6) TMI 1132 - UTTARAKHAND HIGH COURT ], the lack of sufficient evidence presented by the Assessee necessitated further examination and led to the remanding of the case. The tribunal needed a more comprehensive evidentiary basis to make an informed decision about the classification of the goods in question. Consequently, the High Court s decision to remand the matter was appropriate in that context, aiming to ensure that all relevant facts and evidence were adequately considered. In the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Assessing Authority, M/s Emami Ltd. (hereinafter referred to as the Respondent ) preferred an appeal before the First Appellate Authority which was dismissed vide order dated July 26, 2016. d. The Respondent then filed an appeal before the Tribunal which was allowed vide order dated June 8, 2018. The Tribunal held that BPAC falls within the category of medicated ointment and hence is liable to be taxed at the rate of 5% under the heading drugs and medicines in Entry 41 Schedule II. e. Hence, the instant revision petition has been preferred by the Revisionist against the order dated June 8, 2018, passed by the Tribunal. CONTENTIONS BY THE REVISIONIST 4. Learned counsel appearing on behalf of the Revisionist has made the following submissions: a. BPAC has been sold by the Respondent for a long time, and prior to 2018, it has always been assessed as a cosmetic by this Court. Reliance is placed upon the judgments of this Court in M/s. Balaji Agency -v- Commissioner of Sales Tax, U.P. reported in 1994 (19)-STJ-150, M/s. Paras Pharmaceuticals Limited -v- Commissioner, Trade Tax, U.P. Lucknow reported in 2007-NTN-(Vol-33)-313 , and Commissioner Commercial Taxes U.P. -v- Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational Ltd . reported in 2011 NTN (Vol 146) 17 has held that classification of any commodity cannot be made on its scientific and technical meaning. It is only the common parlance meaning of the commodity which should be taken into consideration for the purpose of determining the tax liability. k. The Tribunal has held that if the Revenue wants to classify any product in a particular entry, the burden of proof lies with the Revenue. This observation is against the law laid down by the Hon ble Supreme Court in Commissioner of Customs (Import) Mumbai -v- M/s. Dilip Kumar and Company and Ors. , reported in 2018 (9) SCC 1 , wherein it was propounded that if any exemption or reduction is claimed, the burden shifts on the Assessee to prove the basis for claiming the said exemption or reduction. Therefore, the burden of proof falls on the Respondent in the instant case. l. Once the legislature had consciously excluded antiseptic cream from the category of drugs and medicines then the fact that the commodity has been manufactured after obtaining a drug license does not matter. Consumers purchase a good after looking at its use and consumption, not the conditions mentioned in the drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbit of a particular classification. The burden of the Revisionist thus stood discharged, and therefore, all the authorities cited by the Respondent to the effect that the Revisionist did not discharge its burden of classification are of no relevance. u. It is also necessary to note that exclusion is of a specific product that is antiseptic cream which is not being considered by the legislature as a drug or medicine. Antiseptic cream is a specialised entry, which has been excluded from the entry of drugs and medicines and hence it cannot be included in the general entry of medicated ointment. Medicated ointment is a term of general import whereas the term antiseptic cream is very specific. The term of general import then will give way to the term of specific import. Tested on the touchstone of the principle generalia specialibus non derogant , antiseptic cream will prevail over the general term medicated ointment and under the circumstances the whole entry is to be read and cannot be dissected in the manner the Respondent wants it to be read. Therefore, drugs and medicines exclude antiseptic cream even though there are other medicated ointments on the market that may be included un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the goods that stand exempted find due mention in Schedule I of the Act. Classification and exemptions are two different aspects but when it comes to exemption and payment of reduced rate of tax, the principles applicable would be the same namely the burden will be on Assessee to claim payment at a reduced rate of tax. Reliance is placed on the judgments of the Hon ble Supreme Court in Commissioner of Customs (Import), Mumbai -v- Dilip Kumar and Company and Ors. (supra) , Triveni Glass Limited -v- Commissioner of Trade Tax, U.P. reported in 2023 SCC OnLine SC 1295 , Heinz India Limited -v- State of Kerala reported in 2023 SCC OnLine SC 561 , and Commissioner of Central Excise - v- Shree Baidyanath Ayurved Bhawan (supra) . aa. The order passed by the Tribunal suffers from perversity in as much as it relies upon extraneous material and does not take into consideration any material as prescribed under the law. Hence the finding holding BPAC to be an ointment is perverse. ab. BPAC fails to qualify as an Ayurvedic drug and also fails to qualify as a patented or proprietary medicine. In light of the non-consideration of the same, the order of the Tribunal is rendered perverse. ac. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter to the tribunal. ah. In view of the aforesaid contentions, the instant Revision is prayed to be allowed. CONTENTIONS BY THE RESPONDENT 5. Learned Senior Counsel appearing for the Respondent has made the following submissions: a. BPAC is manufactured by the respondent under Ayurvedic system of medicine under a drug license issued by the Drug Licensing Authority under the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Drugs Act ) and the Drugs Rules, 1945 (hereinafter referred to as the Drugs Rules ). b. All raw materials used in the manufacture of BPAC are mentioned in the authoritative books on Ayurvedic system of medicine specified in the 1st schedule to the Drugs Act. In the Drug License, details of all ingredients along with their medicinal properties and names of authoritative Ayurvedic books are mentioned. c. The composition and packing of BPAC was also approved by the designated statutory authority which administers and regulates the Drugs Act. The Drug License inter alia mentioned the following: Product Name: Boroplus Healthy Skin Antiseptic Cream (For External Use only) Category: Ointment Ayurvedic Medicine Ayurvedic Raw Materials, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished in the earlier proceedings that BPAC is a medicine having all the required drugs and properties of medicine. Consequently, the said product is a medicated ointment and is classifiable under Entry 41. i. The findings about nature and characteristics of BPAC were given by the Additional Commissioner (Appeal) and the Tribunal relied on undisputed and uncontroverted documents and evidence produced by the Respondent. The Revenue did not produce any evidence whatsoever to the contrary. The Tribunal s findings in the order dated June 8, 2018 and in other orders following the said order, were pure findings of fact and these were given on appreciation of documents and evidence on record and the same does not give rise to any question of law so as to warrant interference of this Court under Section 58 of the Act. Reliance is placed on the judgement of the Hon ble Supreme Court in Collector of Customs v. Swastic Woollens (P) Ltd. reported in 1988 Supp SCC 796 . j. Entry 41 excludes 7 named items, that is, medicated soap, shampoo, antiseptic cream, face cream, massage cream, eye jell and hair oil. Immediately after such exclusion, the entry says but including . medicated ointments . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of ejusdem generis as well as noscitur a sociis squarely apply to the said exclusion clause which comprises different items mentioned above in which a common thread is running through all such excluded items, namely, that these are primarily cosmetics and toilet preparations. In support of this submission reliance is placed on the judgement of the Hon ble Supreme Court in Rohit Pulp and Paper Mills vs CCE reported in (1990) 3 SCC 447 . m. The dispute in the instant case relates to classification of goods for the purposes of applying the rate of tax. It is not a case of any exemption from tax or interpretation of any exemption notification. As per the Respondent, BPAC is classifiable under Entry 41 of Schedule II whereas according to the Department it is classifiable under the residuary entry as unclassified item under Schedule V. Both the said schedules carry different rates of tax. Classification is a matter of chargeability. If the Department intends to classify the goods differently than that claimed by the Assessee, burden of proof is squarely upon the Department. In the instant case, in support of its submissions about the goods being covered by Entry 41, voluminous evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical practitioners. All the ingredients of the product are mentioned in authoritative Ayurvedic books mentioned in the Schedule I to the Drugs Act. It is also well settled that the factors such as there being no requirement of a prescription or availability of the goods across the counter in the shops or percentage of active ingredients are not material. q. The goods have always been marketed by the respondent as medicament and by emphasising the medicinal properties. On each tube and pack, the goods are described as Ayurvedic medicine - ointment , and their healing, curative and prophylactic properties and details of the ailments for which it can be used are mentioned. It is clearly declared that it is a preventive, curative and healing Ayurvedic ointment for various diseases and ailments, as mentioned on the tube. Voluminous evidence was produced in support of the submission that in common parlance, BPAC is treated, regarded and dealt with as a medicament. r. As per the respondent, tax cannot be levied by the revisionist merely on the basis of the suggestive aspect of the picture found in the label. Reliance has been placed on the judgement of the Bombay High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not of one part only by itself, and that phrases are to be construed according to the rules of grammar. So construed the meaning of the clause is fairly clear. The genus is the revenue officer , and the including and excluding clauses connected by the conjunction but show that the village accountants are included in the group of revenue officers, but the other village officers are excluded therefrom. If X includes A but excludes B, it may simply mean that X takes in A but ejects B. It is not necessary in this case to consider whether the inclusive definition enlarges the meaning of the words revenue officers , or makes them explicit and clear viz. that the enumerated officers are within the fold of revenue officers ; for in either construction the village accountants would be revenue officers. But we cannot accept the argument that what is excluded was not part of that from which it is excluded, and that lambardars were not revenue officers and yet had to be excluded by way of abundant caution. If so, it follows that the village officers, who included lambardars, were excluded from the group of revenue officers, with the result that they are freed from the disqualification imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eutic importance. The Tribunal s reading of Entry 41 is in tandem with this interpretation, thereby recognising the specific inclusion of medicated ointments as a critical aspect of the entry, providing them with the appropriate tax treatment and regulatory recognition. The Tribunal, in the impugned judgement, held that BPAC s composition and medicinal properties merit its inclusion under medicated ointments. 13. Reference can also be made to the principle of noscitur a sociis. This principle suggests that the meaning of a word is known from the accompanying words, implying that the context provided by surrounding terms can clarify ambiguous expressions. In Entry 41, the inclusion of items like medicated soaps, shampoos, face creams, and massage creams, all of which are cosmetics and toilet preparations, provides a clear context for interpreting antiseptic cream. This interpretation ensures consistency and avoids any arbitrary or inconsistent classification that might arise from interpreting antiseptic cream in isolation. 14. The principle of noscitur a sociis in the context of taxing statutes was explained by the Hon ble Supreme Court in Rohit Pulp (supra) . Relevant paragraphs ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be pressed into service. This principle has been applied in a number of contexts in judicial decisions where the court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST [(1981) 2 SCC 141 : 1981 SCC (Tax) 90] this Court had to understand the meaning of the word old in the context of an entry in a taxing traffic which read thus: Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products...... Though the tariff item started with the use of the wide word old , the court came to the conclusion that in order to fall within the expression old machinery occurring in the entry, the machinery must be old machinery in the sense that it has become nonfunctional or non-usable . In other words, not the mere age of the machinery, which would be relevant in the wider sense, but the condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal s order that its findings were based on a meticulous examination of evidence presented before it, particularly focusing on the difference between antiseptic creams and medicated ointments. The differences between antiseptic creams and medicated ointments as highlighted by the Tribunal are discussed below: a. Relying on Remington Part 5, Pharmaceutical Manufacturing Page 176 and British Pharmacopoeia 2012 Vol. 3, The Tribunal outlined ointments are semisolid preparations for external application to the body and that therapeutically ointments function as protective and emollients for the skin but are used primarily as vehicles or basis for the topical application of medical substances. The Tribunal further highlighted that ointments are formulated to provide preparations that are immiscible, miscible or emulsifiable with the skin secretion. Furthermore, Hydrophobic ointments and water-emulsifying ointment are intended to be applied to the skin or certain mucous membranes for emollient protective, therapeutic or prophylactic purposes where a degree of occlusion is desired. Contrary to the same, The Tribunal highlighted relying on British Pharmacopoeia 2012 23 that creams are int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad spectrum of skin issues, including dryness, rashes, and minor burns. The presence of these medicinal components suggests that BPAC offers more than just antiseptic action; it provides a multi-faceted approach to skincare, aligning it more closely with the properties of medicated ointments. 20. Antiseptic creams, in general, are limited to preventing infections in minor cuts and scrapes. However, BPAC is advertised for a wide range of applications, including the treatment of dry skin, cracked heels, minor burns, and even as a daily moisturiser. This broad spectrum of uses is characteristic of medicated ointments, which are designed to treat specific skin conditions with therapeutic benefits. BPAC s ability to soothe, heal, and protect the skin from various ailments indicates its formulation is intended for more than just antiseptic purposes. By providing hydration, reducing inflammation, and promoting healing, BPAC functions similarly to medicated ointments that deal with chronic skin issues and overall skin health. 21. The Respondent successfully demonstrated before the authorities that BPAC is fundamentally a medicated ointment. This conclusion was reached through detailed evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration. Nonetheless, in a nutshell, we may mention that, as observed in Surendra Cotton Oil Mills case [Collector of Customs Central Excise v. Surendra Cotton Oil Mills Fertilizers Co., (2001) 1 SCC 578] , in the matter of interpretation of charging section of a taxation statute, strict rule of interpretation is mandatory and if there are two views possible in the matter of interpretation of a charging section, the one favourable to the Assessee need to be applied. There is, however, confusion in the matter of interpretation of exemption notification published under taxation statutes and in this area also, the decisions are galore [ See: Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564; CCE v. Abhi Chemicals and Pharmaceuticals (P) Ltd., (2005) 3 SCC 541; CCE v. Parle Exports (P) Ltd., (1989) 1 SCC 345 : 1989 SCC (Tax) 84; Commr. of Customs v. Konkan Synthetic Fibres, (2012) 6 SCC 339; Collector of Customs v. Swastic Woollens (P) Ltd., 1988 Supp SCC 796 : 1989 SCC (Tax) 67; Commr. of Customs v. Reliance Petroleum Ltd., (2008) 7 SCC 220.]. *** 24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the burden of proof is on the Taxing Authorities to show that the particular case or item in question is taxable in the manner claimed by them. Elucidating further, the Court has held that there should be material to enter appropriate finding in that regard and the material may be either oral or documents and it is for the Taxing Authority to lay evidence in that behalf even before the first adjudicating authority. Revive instant starch is used while washing the clothes. In common parlance it is not regarded and treated as a chemical or a bleaching powder. If the very substance or product would have a chemical composition, then only it would make the said substance a chemical within the meaning of Entry 55. Needless to say, the purpose and use are to be taken note of. Common parlance test has to be applied. If the Revenue desired to establish it as a chemical, it was obligatory on its part to adduce the evidence. As is manifest, no evidence has been brought on record by the Revenue that it is a chemical. Therefore, it can safely be concluded that it is not a chemical. 27. The above three Supreme Court judgements clearly laid down the principle that there is a stark difference bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the Respondent. Furthermore, the legal landscape concerning the classification of medicaments has evolved considerably since 1994, with several landmark judgments by the Hon ble Supreme Court providing greater clarity and detailed guidelines on such classifications. These advancements in legal interpretation and the development of relevant jurisprudence were not available to this Court during the Balaji Agency case, rendering its findings irrelevant in the current context. The Tribunal s comprehensive review of the evidence regarding BPAC s composition, therapeutic properties, and intended use starkly contrasts with the scenario in the Balaji Agency, where the absence of evidence was a decisive factor. Therefore, relying on Balaji Agency to argue for BPAC s reclassification disregards the significant differences in the evidentiary records and the evolution of legal standards pertaining to the classification of medicinal products. 31. Similarly, the judgment in Paras Pharmaceuticals (supra) does not advance the Revenue s case also. Firstly, the judgment did not pertain to BPAC, and the specific facts and products involved in Paras Pharmaceuticals were distinct from those c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietary medicine. The extensive scope of Article 144 of the Indian Constitution has been reiterated in the aforementioned judgements. Further, they have clarified that authorities encompass both judicial and non-judicial bodies, affecting any entity with power over citizens. Ultimately, an emphasis has been laid on the Supreme Court s role as the definitive constitutional interpreter, whose orders must be upheld by all authorities, reinforcing the rule of law. One need not join issue with the principles in the above judgements. However, it is to be noted that these principles do not in any manner assist the revisionist in deciding the present case, as the legal interpretation required in the present case is distinct and has been dealt with by me in the preceding paragraphs. 34. The Revenue s argument that the Respondent itself markets BPAC as an antiseptic cream is not a sound argument. Marketing or advertising of a product, while influential in shaping consumer perceptions and driving sales, cannot and should not determine the classification of a product for taxing purposes. Taxation laws and regulations have been designed to categorise products based on their intrinsic proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomers, can its liability to pay duty under a particular tariff item be fastened but on the facts and circumstances actually existing and on a determination whether on the basis of those facts and circumstances as disclosed by the record the case would fall within the provisions of Tariff Item No. 29A(1) or not 36. Similarly, the Custom, Excise and Gold Tribunal, Mumbai, in the case of Hindustan Unilever Ltd. -v- Collector of Central Excise , reported in 2000 (121) ELT 451 stated that advertisements are merely the manufacturer s tools for selling their products. The relevant paragraph is extracted as follows: .Advertising is a potent weapon in the manufacturer s armoury. In the present days of consumerism, a wit has defined advertising as a craft of selling product (1) which is not worth buying (2) which the consumer does not want and (3) which he cannot afford to buy 37. Tax authorities and judicial bodies are tasked with ensuring that classifications reflect the true nature and function of products to maintain fairness and consistency in taxation. This approach prevents companies from manipulating tax liabilities through strategic advertising and ensures that products are taxed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and upheld the judgement of the Sales Tax Appellate Tribunal, Hyderabad, dated March 31, 2004. 39. It is well settled that the Tribunal is the last fact-finding body and that this Court, in revision, would not go into an enquiry with regard to the factual aspects that have been decided by the Tribunal. In the exercise of revisional jurisdiction, the High Court has a limited mandate. The scope of revisional jurisdictional, is primarily focused on questions of law, jurisdictional errors, or procedural irregularities. The High Court, in a revision petition, must refrain from engaging in a de novo inquiry into factual matters already adjudicated upon by the Tribunal unless compelling grounds warranting such intervention are made. 40. The limited revisional jurisdiction under the Act is confined to only the questions of law and not the questions of fact. Section 58 of the Act has been extracted below: 58. Revision by High Court in special cases . (1) Any person aggrieved by an order made under sub-section (7) or sub-section (8) of Section 57, other than an order under sub-section (4) of that section summarily disposing of the appeal, may, within ninety days from the date of service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the view expressed in Sri Raja Lakshmi Dyeing Works [Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] that where both expressions appeal and revision are employed in a statute, obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression appeal . The use of two expressions appeal and revision when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an appeal and so also of a revision . If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case. The classic statement in Dattonpant [Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval, (1975) 2 SCC 246] that revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second court of first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or such finding has resulted in gross miscarriage of justice. Ram Dass [Ram Dass v . Ishwar Chander, (1988) 3 SCC 131] does not lay down as a proposition of law that the revisional power of the High Court under the Rent Control Act is as wide as that of the appellate court or the appellate authority or such power is coextensive with that of the appellate authority or that the concluded finding of fact recorded by the original authority or the appellate authority can be interfered with by the High Court by reappreciating evidence because Revisional Court/authority is not in agreement with the finding of fact recorded by the court/authority below. Ram Dass [Ram Dass v . Ishwar Chander, (1988) 3 SCC 131] does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the court/authority below. Rather, it emphasises that while examining the correctness of findings of fact, the Revisional Court is not the second court of first appeal. Ram Dass [Ram Dass v. Ishwar Chander, (1988) 3 SCC 131] does not cross the limits of Revisional Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. This context is highly important when making an attempt to understand why the decision in Cadbury India (supra) does not support the Revenue s case in the instant matter. In Cadbury India (supra) , the lack of sufficient evidence presented by the Assessee necessitated further examination and led to the remanding of the case. The tribunal needed a more comprehensive evidentiary basis to make an informed decision about the classification of the goods in question. Consequently, the High Court s decision to remand the matter was appropriate in that context, aiming to ensure that all relevant facts and evidence were adequately considered. In the instant case, however, the Tribunal s decision was not made in a vacuum but was grounded in substantial and persuasive evidence that supported the classification of BPAC as a medicated ointment. The Respondent had established beyond doubt that BPAC is a medicated ointment, and no contrary evidence was presented by the Revisionist to challenge this classification effectively. The principles of judicial efficiency and finality also argue against remanding a matter when the evidence has been thoroughly considered and no new facts have emerg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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