High Court orders detailed examination of tests to determine product classification as "medicines" with emphasis on thorough assessment.

The High Court directed remand to the Tribunal for a detailed examination of the two tests accepted by the Supreme Court to determine whether the products in question qualify as "medicines." The Court emphasized the need for a thorough assessment of the facts and allowed both parties to present all relevant points. The case was disposed of with directions for further proceedings, highlighting the importance of a comprehensive analysis before reaching a final decision.

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Issues involved:
The issue in this case revolves around determining whether the products "HIMANI BOROPLUS ANTISEPTIC CREAM" and lotion qualify as "medicines" falling within the scope of Entry 46 of Part-II of Schedule B appended to the Orissa Value Added Tax Act, 2004.

Judgment Details:

Issue 1: Interpretation of the Common Parlance Test and Ingredient Test
The petitioner argues that the product is a cosmetic based on an advertisement, while relying on the Supreme Court's judgment in Puma Ayurvedic Herbal (P) Ltd. v. Commissioner, Central Excise. The two tests accepted by the Supreme Court are the common parlance test and the ingredient test. The Assessing Officer classified the product under the residuary Part III of the Orissa Value Added Tax Act. The opposite party, however, presented studies demonstrating the product's medicinal use for treating minor cuts, burns, and dry skin diseases. The Commissioner and Tribunal accepted these reports, emphasizing the medicinal value of the product.

Issue 2: Burden of Proof and Lack of Finding on Ingredients
The Tribunal acknowledged the product's medicinal value but did not delve into the ingredients, leading to a dispute. The Tribunal dismissed the appeal without ascertaining the facts on ingredients. The burden of proof was on the opposite party to establish that the product falls under the relevant entry. The Tribunal erred in stating that the burden was on the petitioner to disprove this. The judgment highlights the absence of a finding on the common parlance test and disregards the advertisement relied upon by the petitioner.

Conclusion:
The High Court directed remand to the Tribunal for a detailed examination of the two tests accepted by the Supreme Court. The Court did not provide a direct answer to the question at hand, emphasizing the need for a thorough assessment of the facts. The restoration to the Tribunal is not limited to the two tests, allowing both parties to present all relevant points. The revision was disposed of with these directions for further proceedings.

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