TaxTMI 
TaxTMI 
TaxTMI 
2016 (1) TMI 1230
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther in the facts and circumstances of the case the learned Tax Board was justified in law in holding that the product of respondent "Savlon" falls within the ambit of drug and medicine despite of the fact that the assessing authority as well as appellate authority have categoricaly held same to be falling in residuary entry liable to be taxed at higher rate. (iii) Whether in the facts and circumstances of the case the learned Tax Board was justified in law and has not acted illegally and perversely deleting the penalty u/s 61 of the Act despite of the fact that the tax at the lesser rate was deposited contrary to the applicable rate of tax on the goods sold by the respondent assessee." 2. Heard learned counsel for the parties finally. 3. Since all these petitions involve common questions, with the consent of parties all the petitions are being decided by this common order. It relates to assessment years 2006-07 to 2009-10. 4. Brief facts noticed are that the petitioner is a Limited Company and is carrying on business of manufacture/production of cosmetics, toilet articles and medicinal goods. It is the case of petitioner that insofar as products which carry medicinal properti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ducts as held by the lower authorities. Learned counsel contended that the license granted by the competent authority brings out clearly that in the product "shower to shower prickly heat powder" it contain "salicylic acid", "jasad bhasma", "tankanamla", "starch & its derivatives", "perfume AL 5729", "dugdhapashana", and other ingredients which prove that these are special products for specific purposes. Learned counsel contended that a similar product by the name Nycil having the same ingredients has been considered to be a medicine/drug in the case of B. Shah & Co. v. State of Gujarat [1971] 28 STC 5, and when the same ingredients or contents are available in the said product as that of Nycil, the claim of assessee is well justified and reasoned. 9. Learned counsel also contended that the product manufactured by the assessee of "Listerine Mouthwash" as also "Cool Mint Listerine Mouthwash" contains "Thymol IP", "Eucalyptol PCs", "Menthol IP", and other ingredients and all these are used for specialised purpose and are used as a medicine and not in ordinary sense. Learned counsel also contended that "vicks" which also contains ethanol as in "Listerine" has been held to be a drug. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty as all facts were available before the AO and insofar as classification is concerned, penalty u/s 61 is not leviable or imposable and relied upon the judgments of Sree Krishna Electricals v. State of Tamil Nadu & Another (2009) 11 SCC 687, of the Apex court so also judgment of this court in the case of CTO v. Bambino Agro Industries Ltd. [STR 59/2010, decided on 29.9.2015]. 13. Per contra, learned counsel for the respondent vehemently contended that a minor percentage of acid or ethanol contained in the product cannot be said to be a drug or a medicine. Learned counsel contended that the lower authorities have insofar as "Shower to Shower" and "Listerin" has in unison come to the conclusion that they contain no medicinal value or drugs and even are freely available in general stores, whereas, if they can be said to be drug/medicines, they can only be sold by a licensed trader or under the prescription of a medical Doctor. Learned counsel contended that these products can be merely termed as cosmetics and nothing more. Learned counsel also contended that even applying the test of common parlance it does not show or prove that these are to be considered as medicines or drugs. Lea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id to be drugs or medicine. "Shower to Shower" is just like a cosmetic, may be it has some medicinal value, similar is "Listerine Mouth Wash" and by both these products one may merely feel good or fresh but these products certainly cannot be said to be medicines or remotely even drugs and these two products cannot improve any ailment, sufferance, disease of body/mouth. 18. In my view, though under Central Excise, courts may have come to a conclusion that similar products are drugs or medicines but insofar as Sales Tax laws or VAT provisions are concerned, prima facie, they have to be independently decided on the basis of entries prescribed in the Schedule to charge certain rates as prescribed in Sales Tax/VAT laws. Taking aforesaid reasoning in my view these two products, are nothing more than cosmetics and even every cosmetic which is used to remove the body smell or odour will certainly contain some medicinal properties like acid etc. and even if the licensing authorities may grant permission to the producers / manufacturers as drug but they cannot be treated as a drug or medicine when specific entries under the Sales Tax laws are required to be looked into and considered. A min....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... defined as "the process of killing pathogenic organisms or of rendering them inert". The above descriptions persuades me to hold that the function of a 'Disinfectant' which is a chemical or mixture of chemicals of appropriate percentage is destruction or making inert micro organisms particularly on inanimate objects. But that does not mean that a Disinfectant could be used only on inanimate objects and the moment it could be used on animate objects also, it ceases to be a 'Disinfectant' and became an 'Antiseptic'. Its use on animate objects is only external with the same purpose - destruction or making inert micro organisms. .... It includes sterilisation of instruments and general disinfection of wards and theatre, hands, face, masks, soiled hospital linen, etc (ie, on inanimate objects). It can also be used for bathing and irrigation of abscesses and boils, not to say about its use to prevent dandruff. 'Dettol' can be used for bathing as well. It is stated (on the label) that a little Dettol added to bath water is pleasant, refreshing and deodorising. A deodorant is a substance that destroys or masks odors (smell). The mere fact that 'Dettol....