2007 (11) TMI 572

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.... medicated or as defined under the Drugs and Cosmetics Act, 1940, is liable to the rate of 12 per cent, is illegal and consequently, the exclusion of the products capable of being used as tooth pastes which is otherwise a medical formulation or preparation ready for use externally for treatment of mitigation or prevention of diseases or disorders in human beings or animals which is otherwise liable to tax at five per cent under entry 20A of Part C of the First Schedule to the Act, is ultra vires of article 14 read with article 19(1)(g), article 21 and article 301A of the Constitution of India. The Tribunal dismissed the original petition under order dated September 12, 2001 rejecting the plea of the petitioner that the tooth paste sold b....

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....tioner to hold the items in question as medicinal preparation by the mere application of the decision relied on by the assessee-petitioner herein without any factual basis to hold so. In the decision reported in State of Goa v. Leukoplast (India) Ltd. [1997] 105 STC 318 (SC), while dealing with a challenge made as to whether adhesive plaster, surgical wound dressing and crepe bandage could be treated as medicines, the apex court held that the question whether the products manufactured by the assessee could be treated as "drugs and medicines" had to be found out as to how those products were understood and treated in the market, whether in the ordinary commercial sense, those articles were considered as drugs and medicines. The question whet....