2008 NTN 38) [UTTARAKHAND HIGH COURT]

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1 2008 NTN (Vol. 38) [UTTARAKHAND HIGH COURT] Hon ble Prafulla C. Pant and Hon ble Dharam Veer, JJ. Commercial Tax Revision Nos. 17,18,19 and 20 of 2008 Commissioner of Trade Tax/Commercial Tax, Dehradun vs. M/s Perfetti Van Melle (India) Pvt. Ltd., Rishikesh Date of Decision : 28th July, 2008 For the Applicant For the Opp.party : Sh. Sudhir Kumar : Sh. Sudhanshu Dhulia, Senior Advocate, & Ms. Puja Banga, Advocate Entries in Schedule Classification of goods Rate of Tax - Chlormint Candy, Chlormint Gum, Chlormint Ice, Chlormint Ice Gum, Chlormint with Harbasole, Happydent, Gum Draggy, Chewable Gum Draggy, and Chattar Patar, - Uttaranchal VAT Act, Whether Chlormint Candy, Chlormint Gum, Chlormint Ice, Chlormint Ice Gum, Chlormint with Harbasole, Happydent, Gum Draggy, Chewable Gum Draggy, and Chattar Patar, are wrongly held to be Ayurvedi medicine by Trade Tax Tribunal? Held Items Chlormint with Herbasole and Happydent manufactured by the assessee under valid drug license are Ayurvedic medicines and Trade Tax payable on said items is 4 percent as provided in Clause (b) of sub-section (2) of Section 4 of the Uttaranchal Value Added Act, Other items i.e. Chlormint Candy, Chlormint Ice, Chlormint Gum, Gum Draggy, Chewable Gum Draggy and Chatar Patar, manufactured and sold by assessee/respondent, cannot be said to be Ayurvedic preparations as in respect of these items it is not shown that the same are according to formulations prescribed by authoritative books of Ayurvedic medicines. Therefore, charging of 12.5 percent Trade Tax in respect of these items cannot be said to be wrong. In the present case, the items Chlormint and Happydent are manufactured by the assessee/respondent under the drug license issued to it by the Directorate of Ayurvedic Medicines of State of Haryana. As to the formulations, the quantity of Chlormint with Herbasole and Happydent are also mentioned in the covers they are sold (as is apparent from annexures filed with counter-affidavit). As to the utility of Chlormint with Harbasole, as mouth fresheners and that of Happdent (white baking soda with mint flavour) to keep the teeth clean, are also not disputed. Only for the reasons these items are also purchased by some customers for taste also, does not make them confectionary items particularly when the same are manufactured under a valid drug license. As such, having heard learned Counsel for the parties and after going through the principle of Law laid down in M/s Puma Ayurvedic Herbal (Pvt.) Ltd. vs. Commissioner Central Excise, Nagpur, (2006) 3 S.C.C. 266 and Naturalle Heath Products (Pvt.) Ltd. vs. Collector of Central

2 Excise, Hyderabad, (2004) 9 S.C.C. 136 and for the reasons discussed above, we hold that items Chlormint with Herbasole and Happydent manufactured by the assessee under valid drug license are Ayurvedic medicines and Trade Tax payable on said items is 4 percent as provided in Clause (b) of sub-section (2) of Section 4 of the Uttaranchal Value Added Act, However, applying the same principles as discussed above, we hold that other items i.e. Chlormint Candy, Chlormint Ice, Chlormint Gum, Gum Draggy, Chewable Gum Draggy and Chatar Patar, manufactured and sold by assessee/respondent, cannot be said to be Ayurvedic preparations as in respect of these items it is not shown that the same are according to formulations prescribed by authoritative books of Ayurvedic medicines. Therefore, charging of 12.5 percent Trade Tax in respect of these items cannot be said to be wrong. Cases referred:- Puma Ayurvedic Herbal (Pvt.) Ltd. vs. C.C.E., Nagpur 2006 (3) SCC 266 Naturalle Heath Products (Pvt.) Ltd. vs. C.C.E., Hyderabad 2004 (9) SCC 136 (Hon ble Prafulla C. Pant, J.) JUDGMENT There four revisions are filed by Commissioner Trade Tax/ Commercial Tax, Uttarakhand, under Section 55 read with Section 80 of Uttaranchal Value Added Tax Act, 2005, and directed against the order dated 17th August, 2007, passed by Chairman, Trade Tax Tribunal, in Second Appeal No. 74 of 2007, Second Appeal No. 75 of 2007, Second Appeal No. 76 of 2007 and Second Appeal No. 77 of 2007, which are allowed by said authority by a common judgment challenged in these revisions. 2. In all these four revisions, question of law involved is as under: Whether Chlormint Candy, Chlormint Gum, Chlormint Ice, Chlormint Ice Gum, Chlormint with Harbasole, Happydent, Gum Draggy, Chewable Gum Draggy, and Chattar Patar, are wrongly held to be Ayurvedi medicine by Trade Tax Tribunal? 3. Heard learned Counsel for the parties at length. 4. Brief facts of the case are that respondent/assessee M/s. Prefeti Van (India) Pvt. Ltd. Ltd., is registered under Uttaranchal Value Added Tax Act, 2005 (hereinafter referred as Uttaranchal VAT Act) for doing business of manufacturing and selling of Ayurvedic medicines and confectionery items. The dispute relates to the assessment for the months of April 2006, May 2006, June 2006 and July 2006, for which assessee submitted its monthly returns in Form-III on 23rd May, 2006; 24th June, 2006, 27th July, 2006 and 23rd August, 2006 respectively. The sale for said four months were shown in the return of the items manufactured and produced by the

3 assessee amounting to Rs. 97,34,613.00; 90,75,226.00; Rs. 89,47,046 and Rs. 78,28,978. Out of said amount for the aforesaid four months, sales made through C.S.D. canteens were exempted from trade tax to the tune of Rs. 16,935.00; Rs. 9,072; Rs. 14, and Rs. 6, Apart from this, sales of items, Chlormint Happydent and Chatar-Patar, manufactured and sold by the assessee for the months of April 2006, May 2006, June 2006 and July 2006, were shown as Rs. 5,57,432.00; Rs. 5,17,019.00; Rs. 3,66, and Rs. 5,98, but only 4 percent of tax was deposited on these sales and rest 8.5 percent tax was deposited under Protest. The case of the revisionist is that Chlormint Candy Chlormint Gum Chlormint Ice Chlormint Ice Gum Happydent and Chatar Patar are confectionary items and tax payable on said items is 12.5 percent and not 4 percent which is applicable to the Ayurvedic medicines and as such, the tax is not payable on said items is at the rate of 4 percent, which is applicable to the Ayurvedic medicines. The case of assessee/respondent is that the aforesaid items are Ayurvedic medicines and as such, the tax is payable on said items at the rate of 4 percent. The Assessing Officer, the First Appellate Authority i.e. Joint Commissioner, Trade Tax, rejected the assessee s contention and held that the items manufactured and sold by the assessee are confectionary items and not Ayurvedic medical preparations. Aggrieved by said judgment, the aforesaid four appeals were filed by the assessee before the Trade Tax Tribunal, who accepted the case of the assessee and allowed the four appeals. Hence these revisions. 5. Shri Sudhir Kumar, learned Counsel for the revisionist argued that Chlormint Candy, Chlormint Gum, Chlormint Ice, Chlormint Ice Gum, Chlormint with Herbasole, happydent and Gum Draggy, Chewing Gum Draggy Chatar Patar, manufactured and sold by the assessee, are not Ayurvedic medicines but only confectionary preparation. He further argued that the items in the common parlance are not used as medicines but purchased by the customers for taste. On the other hand, Shri Sudhanshu Dhulia, learned Senior Advocate representing the assessee, contended that the aforesaid preparations are Ayurvedic medicines, as the products in question have medicinal use and utility. 6. Before further discussion, we think it proper to mention the relevant provisions of law, applicable to the case. Section 4 of Uttaranchal Value Added Tax Act, 2005, which pertains to rate of tax on the various kinds of items provides four slabs on rate of tax. In Clause (b) of sub-section (2) of Section 4 of Uttaranchal VAT Act, 2005, provides that a dealer shall be liable to pay tax on his taxable turnover in respect of goods specified in Schedule II(B) at the rate of 4 percent. It further provides that in respect of goods other than those included in any of the Schedules, the rate of tax would be 12.5 percent. Schedule II(B) of aforesaid Act, Classifies 126 items (for which rate of tax is 4 percent). Item No. 41 of Schedule II(B), enumerates

4 Drugs, medicines and pharmaceutical preparations (Alopathic, Ayurvedic, Homeopathic and Unani) including vaccines syringes and dressings, medicated ointments produced under drug license and the light liquid paraffin of I.P. Grade. 7. The words Drugs and Medicines are not defined in Uttaranchal Value Added Tax Act, To interpret the words Drugs and Medicines, learned Counsel for both the parties, referred to definitions given is Section 3(a) and Section 3(h) of Drugs and Cosmetics Act, Clause (a) Section 3 of Said Act, reads as under: (a) Ayurvedic, Siddha or Unani drug includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in, the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule. 8. Clause (h) of Section 3 of the Drugs and Cosmetic Act, 1940, defines patent or proprietary medicine as under: (h) patent and proprietary medicine means (i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurvedic, Siddha or Unani Tibb Systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parental route and also a formulation included in the authoritative books as specified in Clause (a). (ii) in relation to any other systems of medicine 9. Authoritative books of Ayurvedic and Siddha systems, are mentioned in Schedule A of First Schedule of Drugs and Cosmetic Act, Said list includes book titled Bhav Prakash. Shri Sudhanshu Dhulia, learned Counsel for the respondent referred before us, item Nos. 70 and 73 of Schedule-I of book titled Bhavprakashnighantu. Written by Ganga Sahaye Pandey and Krishnachandra Chunekar. The entries in the Schedule of said Book describe qualities of Peppermint and Pudeena (Spearmint). Our attention is also drawn to the fourth chapter of Book titled Dravyaguna Vijnana Volume-II, written by prof. P.V. Sharma, in which medicinal qualities of Eucalyptus, are mentioned. On the basis of properties mentioned of peppermint and pudeena, it is argued that the items manufactured by assessee have medicinal value and for the reason that the chlormint preparations included the aforesaid peppermint and spearmint, as its contents. Therefore, the same are Ayurvedic medicines and not the confectionary. On the other hand, Shri Sudhir Kumar, learned Counsel for the revisionist, argued that Haldi (turmeric), Kalimirch (black pepper), etc. have also medicinal values and that does not make everything medicine.

5 What makes an item medicine is formulae for the medicines in its proper does for the treatment of a disease or disorder. 10. No doubt, merely for the reason that some plant or its leaves, stem, or fruit has medicinal value does not make everything Ayurvedic medicine. But in the present case, literature of Chlormint which Herbasole and Happydent (white baking soda with mint flavour) show that the same are manufactured under Ayurvedic medicine manufacturing license No. 157 ISM (HR). Annexure-I to the counter-affidavit filed in these revisions shows that the Deputy Director-cum-Licensing Authority of Directorate of Ayush Haryana, has renewed the license of the respondent M/s. Perfetti Van Melle (India) Pvt. Ltd. for manufacturing Ayurvedic/Siddha drugs. Annexure-3 to the counter-affidavit shows that the Licensing Authority and Director of Ayurvedic, Haryana, has approved the preparations of Chlormint and Happydent, manufactured by the respondent/assessee under Drugs and Cosmetic Act, It is not disputed that there are three kinds of medicines available in the market. Firstly, the medicines which can be purchased from only approved chemist/pharmacist that too only on the prescription of the registered medical practitioner. Secondly, the medicines, which can be purchased from approved chemist/pharmacist but not necessarily required to be prescribed by registered medical practitioner And thirdly, the medicines, which can be purchased without prescription of any medical practitioner and can be, had not only form the shops of the approved chemists but also form other shops. It is not disputed that even those products containing formulae of constitutes prescribed by authorised books of medicines, which are not prescribed by doctors and not required to be purchased necessarily from the approved chemists are also medicines, provided the same are manufactured under the drugs, license, issued under Drugs and Cosmetic Act, In the present case, the items Chlormint and Happydent are manufactured by the assessee/respondent under the drug license issued to it by the Directorate of Ayurvedic Medicines of State of Haryana. As to the formulations, the quantity of Chlormint with Herbasole and Happydent are also mentioned in the covers they are sold (as is apparent from annexures filed with counter-affidavit). As to the utility of Chlormint with Harbasole, as mouth fresheners and that of 'Happdent' (white baking soda with mint flavour) to keep the teeth clean, are also not disputed. Only for the reasons these items are also purchased by some customers for taste also, does not make them confectionary items particularly when the same are manufactured under a valid drug license. As such, having heard learned Counsel for the parties and after going through the principle of Law laid down in M/s Puma Ayurvedic Herbal (Pvt.) Ltd. vs. Commissioner Central Excise, Nagpur, (2006) 3 S.C.C. 266 and Naturalle Heath Products (Pvt.) Ltd. vs. Collector of Central Excise, Hyderabad, (2004) 9 S.C.C. 136 and for the reasons discussed above, we

6 hold that items Chlormint with Herbasole and Happydent manufactured by the assessee under valid drug license are Ayurvedic medicines and Trade Tax payable on said items is 4 percent as provided in Clause (b) of subsection (2) of Section 4 of the Uttaranchal Value Added Act, However, applying the same principles as discussed above, we hold that other items i.e. Chlormint Candy, Chlormint Ice, Chlormint Gum, Gum Draggy, Chewable Gum Draggy and Chatar Patar, manufactured and sold by assessee/respondent, cannot be said to be Ayurvedic preparations as in respect of these items it is not shown that the same are according to formulations prescribed by authoritative books of Ayurvedic medicines. Therefore, charging of 12.5 percent Trade Tax in respect of these items cannot be said to be wrong. 13. Accordingly, the question of law stands answered And the four Revisions are partly allowed. The impugned order dated 17th August, 2007 passed by Chairman, Trade Tax Tribunal, Dehradun, in Second Appeal No. 74 of 2007, Second Appeal No. 75 of 2007, Second Appeal No. 76 of 2007, and Second Appeal No. 77 of 2007, stands modified accordingly

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