TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 655
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....d has held that the protective sunglasses fall under Entry 87 of Schedule-II to the Gujarat Value Added Tax Act, 2003 [hereinafter referred to as, "the VAT Act"], the appellant-State of Gujarat has preferred Tax Appeal No. 657 of 2013 praying to quash and set-aside the Order dated 20th October 2011 passed by the Joint Commissioner of Commercial Tax [Legal], Gujarat State, Ahmedabad - the Determining Authority, whereby, the Determining Authority held that the protective sunglasses fall under Entry 87 of Schedule II to the VAT Act and has held that the Fastrack brand sunglasses are "medical devices " and fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006. The learned Tribunal has also held that the Fastrack brand Sunglasses also shall fall under Notification dated 1st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law : [A] "Whether in the light of the above facts and circumstances of the case, the Hon'ble Tribunal had rightly interpreted Entry 28A (ii) to Schedule II of the Gujarat Value Added Tax Act, 2003 ?" [B] "Whether on the facts and circumstances of....
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....was the case on behalf of the dealer that Fastrack brand Sunglasses are "medical devices" and therefore, as per Notification of Finance Department dated 31st March 2006 and/or Notification 16th May 2008, the product Fastrack brand Sunglasses are "medical devices" and shall fall in Entry 28 [A] (ii) of Schedule II to the VAT Act. That, the determining authority by determination order passed under Section 80 of the VAT Act dated 20th October 2011 held that the product Fastrack brand Sunglasses are not medical devices, and therefore, shall not fall in Entry 28 [A] (ii) of Schedule II to the VAT Act and shall fall/considered as residuary goods and will fall under Schedule-II, Entry 87 and is liable to be taxed @ 12.5% and not as "medical device". 4.2 That, feeling aggrieved and dissatisfied with the determination order dated 20th October 2011 passed by the learned Joint Commissioner of Commercial Tax [Legal], Ahmedabad, the respondent herein-Dealer preferred First Appeal before the learned Tribunal. By the impugned judgment and order, the learned Tribunal has considered and held that the Fastrack branch Sunglasses as "medical devices" by observing that the sunglasses are used to prote....
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....ge in the earlier Notification dated 31st March 2006 and the subsequent Notification dated 16th May 2008. It is submitted that as per earlier Notification dated 31st March 2006, Spectacles, Correctives and Protectives were falling under "Medical equipments, Devices and Implants" for the purpose of Entry 28A (ii) of Schedule II. It is submitted that thereafter, vide Notification dated 16th May 2008, the earlier Notification dated 31st March 2006 came to be superseded and the Government specified all types of "medical equipments, devices and implants" to be "medical devices" for the purpose of Entry 28A (ii) of Schedule II to the Act. It is submitted that therefore, the words used in the earlier Notification viz., "Spectacles, Correctives and Protectives" came to be deleted. It is submitted that therefore, the reasonings given by the learned Tribunal that Fastrack brand Sunglasses are used to protect eyes from ultraviolet rays and to prevent early on-set of cataract as well as it protects cornea in case of dry eyes, and therefore, shall be considered as "medical devices" is absolutely on misinterpretation of entry and the Notifications dated 31.03.2006 and 1st May 2008. 5.4 It is fu....
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....ereby quash and set-aside the impugned judgment and orders passed by the learned Tribunal and hold the questions in favour of the Revenue and against the respondent-Dealers. 6. The present Appeals are vehemently opposed by Shri Tanvish Bhatt, learned advocate appearing on behalf of the Dealer in Tax Appeal No. 657 of 2013 and Shri R.V Desai, learned advocate appearing on behalf of the respondent-Dealer in Tax Appeal No. 826 of 2013. 7. Learned advocate Shri Tanvish Bhatt appearing on behalf of the respondent-Dealer has vehemently submitted that in the facts and circumstances of the case, the Tribunal has not committed any error in considering and holding the Fastrack brand Sunglasses as "medical device". It is submitted that therefore, when the "sunglasses" are treated and considered as "medical device", the same shall fall in Entry 28A (ii) of Schedule II to the VAT Act, and therefore, residual clause shall not be applicable, and therefore, the Dealer is not liable to pay tax on such sunglasses/medical device @ 12.5%. 7.1 It is vehemently submitted by Shri Bhatt, learned counsel for the Dealer that the learned Tribunal has considered in detail, the use and purpose of sunglasses....
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....rcumstances of the case and when considering the user aspect of the sunglasses ie., to protect the eyes from ultraviolet rays and to prevent damage to the eyes, the learned Tribunal has considered "sunglasses" as "medical device", it is submitted that no error has been committed by the learned Tribunal in arising at such a conclusion. Therefore, it is requested to dismiss the present Tax Appeal. 9. Heard learned advocates appearing on behalf of the respective parties at length. 10. The short question which is posed for consideration before this Court is whether Fastrack brand Sunglasses/Sunglasses can be said to be "medical device" falling under Entry 28A (ii) of the VAT Act ? 11. While considering the aforesaid question and while appreciating the submissions made by learned counsel appearing on behalf of the respective parties, the chronology of events which led to different notifications, and therefore, the necessary changes in the Notifications issued by the Government which may reflect the intention on the part of the Legislature is required to be considered. 12. Entry 28A (ii) of Schedule II to the VAT Act, as reflected in the first Notification dated 31st March 2006, the ....
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.... 23 Paris (not specified or included elsewhere in this Schedule) of goods mentioned in this Schedule. 9033 00 00 Explanation : For the purposes of this notification: (1) The rules for the interpretation of the provisions of the Central Excise Tariff Act, 1985 read with Explanatory Notes as updated from time to time, published by the Customs Co-operation Council, Brussels, apply for the interpretation. (2) Where any commodities are described against any heading or sub heading or as the case may be, tariff item, and the aforesaid description is different in any manner from the corresponding description in the Central Excise Tariff Act, 1985, then only those commodities described as aforesaid shall be covered and other commodities though covered by the corresponding description the Central Excise Tariff shall not be covered under this notification. (3) Subject to the Explanation (2), for the purpose of any entry contained where the description against any heading or sub heading or as the case may be, tariff items matches, fully with corresponding description in the Central Excise Tariff, then all the commodities covered for the purposes of the said tariff....
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....s, devices and implants" for the purpose of the said Entry 28A of Schedule II to the Act. And therefore, use of spectacles, correctives and/or protectives would loose its significance. 14. From the schedule mentioned in the Notificationdated 31st March 2006, it appears that all other items; except "spectacles, correctives and protectives" all other items can be said to be either medical equipments, medical devices or medical implants. However, with a view to remove doubt and to take away "spectacles, correctives and protectives " out of the purview of Entry 28A (ii) of Schedule II to the VAT Act, the Government Notification dated 31st March 2006 came to be superseded and by virtue of Notification dated 16th May 2008, only medical equipments, devices and implants are specified to be "medical equipments, devices and implants" for the purpose of Entry 28A of Schedule II to the VAT Act. 15. In light of question posed for consideration of this Court whether the Sunglasses/Fastrack brand sunglasses can be said to be "medical device" as held by the learned Tribunal as Sunglasses/ Fastrack brand Sunglasses are protectives, and therefore, the same shall be considered as "medical device" a....
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....dated 31st March 2006 by a new Notification dated 16th May 2008. It cannot be disputed, while interpreting an entry in the taxing statute, the legislative intend to play an important role, some meaning as to be given to the intention of the Legislature in superseding the earlier Notification dated 31st March 2006 and bring in the new Notification dated 18th May 2008. If the intention of the Legislature was to continue to consider spectacles and protectives as "medical equipments, devices and implants" for the purpose of Entry 28A of Schedule II of the Act, there was no necessity to supersede the Notification dated 31st March 2006 to come out with a new Notification dated 16th May 2008. 16. No so far as reliance placed upon decision of Hon'ble Supreme Court in the case of Ponds India Limited [Supra] is concerned, at the outset, it is required to be noted that the said decision shall not be applicable to the facts of the case on hand. In the case before the Hon'ble Supreme Court, the Apex Court considering the definition of "drug" under the Drugs & Cosmetics Act, 1940 held that any product which prevents disorder of human function would also come within the purview of drug. ....