TaxTMI 
TaxTMI 
2014 (5) TMI 368
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Description of the Goods Point of levy Rate of Tax Item No. the Pre.Sch. 1 2 3 4 5 20 (A) Medicines conforming to the following description:- Any medicinal formulation or preparation At the point 595 ready for use internally of externally of first sale in or treatment or mitigation or the State prevention of disorders in human beings or animals (excluding products capable of being used as creams, hair oils, toothpastes tooth powders, cosmetics, toilet articles, soaps and shampoos) but including: i) Allopathic medicine. ii) Other medicines and drugs including ayurvedic, homepathic, siddha and Unani preparations. iii) Medical mixtures or compounds the compounents of which have not already suffered tax. iv) Surgical dressing which expression shall include adhestive Plasters, adhesive Plaster if paris and eangages, velrocoop Eangages, elastro crape handages, zauze, Wadding gauz, lint and cotton woll poultices And similar articles impregated or coated with Pharmaxetidal substances put up informs or packings for sur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the assessing authority, placing reliance on the explanation in Entry I Part F of the Act that Ramthirth Brahmi Oil is a hair oil even after medication and hence a drug as defined under Section 3(b) of the Drugs and Cosmetics Act and therefore, the same would fall under Entry 1 of Part F to 1st Schedule. Aggrieved by the said order, the assessee went on appeal before the Appellate Assistant Commissioner, who agreed with the Assessing Authority. Thus the assessee went on further appeal before the Sales Tax Appellate Tribunal. On the materials furnished by the assessee, the Tribunal held that Ramthirth Brahmi Oil is not only usable on the head but could also be used as oil for body massaging. The literature shows that it is a nervine stimulent and further it has a cooling effect on the body. Referring to the decision reported in 104 STC 198 (Debur India Limited Vs. Commissioner of Sales Tax, Orissa and others), the Tribunal held that the evidence produced at the time of hearing pointed out that the item in question would fall under Entry 20 of Part C of the First Schedule. Thus the appeal was allowed. Aggrieved by the same, the Revenue is on appeal before us. 4. Learned Speci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les Tax Act, 1959, the Commissioner referred to the letter written by the Director of Ayurved, Bombay, Maharashtra State, that the oil is marketed as an Ayurvedic medicine and is an excellent medicated oil. It is recommended for lustrous and black hair, containing dandruff, inducing sound sleep and body massage to all during all seasons. Accepting the case of the assessee that Ramtirth Brahmi Oil marketed by them is not just hair oil simpliciter, the Commissioner, Bombay General Sales Tax, held that Ramtirth Brahmi Oil would be liable to tax at 3%. The view of the Appellate Assistant Commissioner, Palakkad as well as the Deputy Commissioner of Commercial Taxes, Karnataka are all on similar lines as has been held by the Commissioner of Bombay General Sales Tax. It is also relevant to note herein that the Commissioner of Central Excise, Coimbatore has certified that 'Brahmi Oil' manufactured by M/s. Ramthirth International is an Ayurvedic Medicine classifiable under Heading No.3003 and is entitled to exemption under Notification No.75/94 dated 29.3.1994 as amended. In the face of these voluminous materials as available, rightly the Tribunal came to the conclusion that the item in que....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... formula given in Ayurvedic medicinal books would not make it as anything other than a hair oil. The said decision has no bearing on the issue herein. 9. As already pointed out, the Revenue has not produced any material or has disputed the materials produced by the assessee to support its contention that Ramtirth Brahmi Oil was ever sold as a hair oil and not as medicament. 10. It is a settled principle of law that the onus to prove that a particular product falls under a particular head of the Schedule is on the Revenue. It is for the Revenue to show and establish that the goods in question is not a medicament or that the common man did not treat it as a medicament. - Refer (2003) 5 SCC 60 (Commissioner of Central Excise Vs. Sharma Chemical Works). 11. In (1996) 9 SCC 402 (Shree Baidyanath Ayurved Bhavan Ltd. Vs. Commissioner of Central Excise), the Apex Court held that the entries in a statute like Excise Act should be understood according to the popular meaning as understood by the users and not by the scientific or technical meaning. Referring to the decision reported in 14 STC 813 (MP) ( Commissioner of Sales Tax Vs. Shri Sadhna Aushadhalaya) dealing with the question....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cucumber, bio-coconut, bio-kelp, bio-milk, bio-margosa, bio-peach, bio-pro, bio-quince, bio-saffron, bio-soya, bio-wheat, bio-wintergreen and bio-walnut are ayurvedic medicines or would fall under cosmetics and toilet preparation, attracting 40% duty. In laying down the principles, for classification, the Apex Court considered the decisions of the Apex Court reported in 1995 Supp (3) SCC 1 (B.P.L. Pharmaceuticals Ltd. v. CCE), (1996) 9 SCC 402 (Shree Baidyanath Ayurved Bhavan Ltd. v. CCE), (2006) 3 SCC 266 (Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner, Central Excise, Nagpur), (2003) 3 SCC 111 (Alpine Industries Vs. Collector of Central Excise, New Delhi), (2005) 10 SCC 573 (Calcutta Chemicals Co. Ltd. Vs. Commissioner of Central Excise, Chennai) and a series of other decisions and pointed out that the extent of a small percentage of ingredients having therapeutic or prophylactic value and use of the product for beautification, would not, ipso facto, make a product a cosmetic preparation. The Apex Court pointed out that the common parlance test is not be all and end all of the matter and merely because a product could be put to cosmetic use, that would not, by itself, make it a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mi Oil as an ayurvedic product. The Commissioner (Central Excise), Coimbatore, had also issued a certificate, treating the product as an ayurveda medicine, classifiable under Heading 3003 and exempt under Notification 75/94. In the background of the voluminous materials thus produced before this Court, which were, in fact, relied on before the hierarchy of authorities, we have no hesitation in accepting the case of the assessee that Ramtirth Brahmi Oil is to be assessed as medicine under Entry 20 Part C I Schedule as an ayurvedic medicine and not falling under Entry 1(ii) of Part F of the I Schedule as a hair oil, read with Explanation therein. 17. It is no doubt true that the decisions of the Apex Court referred to above arise under the excise law and the entries may not be in identical wording as in the sales tax enactment. Nevertheless, the answer to the question as to whether a particular product is a medicinal product or not was considered in the above-said decisions, wherein, the Revenue sought to treat the items in question either as toilet preparation or as cosmetic. Thus, even with the difference in the entries, if a product could be classified only as a medicament or a....