TaxTMI 
TaxTMI 
2019 (5) TMI 204
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule II instead of Entry 11 of Part IV Schedule II (where it was previously classified prior to the amendment) from the financial years 1999-2000 to 2005-2006 ?" 02-The respondent before this Court is a manufacturer of the following products :- a)Himami Navratna Oil; b)Himami Boroplus Antiseptic Cream; c)Himami Boroplus Prickly Heat Powder; d)Himami Gold Turmeric Cream; e)Himami Nirog Dant Powder Lal. 03-The aforesaid reference has been made in respect of levy of Commercial Tax under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994. The relevant statutory provision of law i.e. Schedule appended to the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994, which is necessary for answering the reference, reads as under:- "SCHEDULE II PART III Sl. No. Description of goods Total rate of tax (1) (2) (3) 41. Scents, perfumes, hair tonics, hair creams, hair oils, hair shampoo, depilatories, face creams, snows, lipstics, rougue, nail polish and other cosmetics including medicinal preparation thereof. 12 49. Tooth paste, tooth powder, hair oils, face powder, talcum powder, [toilet soap, washing soap] and other toi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ner of C. Ex., Calcutta Vs. Sharma Chemical Works reported in 2003 (154) ELT 328 (SC), Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner of C. Ex., Nagpur reported in 2006 (196) ELT 3 (SC) and State of Madhya Pradesh Vs. Marico Industries Ltd. reported in AIR 2016 SC 3462. 07-He has also argued about the process involved in manufacturing the items, which are being manufactured by the Emami and the composition of the items. Reliance has also been placed upon other material including levy of other taxes upon the items manufactured by the respondent Emami Limited and it has been argued that the items manufactured by the Emami are Ayurvedic Drugs / Drugs and it falls under the heading of drugs and medicines. 08-He has placed reliance upon a judgment delivered by the Division Bench of this Court in the case of Vicco Products (Supra) and has also placed reliance upon a judgment delivered by this Court in the case of M/s. Popular Sales Vs. The State of Madhya Pradesh (Writ Petition No.1486/2009, decided on 02nd February, 2012) and his contention is that Division Bench of this Court in the case of Dermicool Power and Itch Guard Cream has held that its a drug / medicine and the writ app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ace cream manufactured by the writ petitioner falls in Entry 21 of Part II of Schedule II of the Act, it attracts rate of tax @ 16 per cent. Similarly, in respect of tooth paste or powder, the Entry 2 of Part III of Schedule II of the Act attract tax @ 12 per cent. Again, there is no classification on the basis whether it is a medicine or a cosmetic. The tooth paste or tooth powder, whether it is a medicine or a cosmetic will attract tax @ 12 per cent i.e. the classification specified in the Act itself. 12.The argument that the product manufactured by the petitioner are required to be given trade meaning and treated as such, is factually incorrect. Such situation would require examination, if the Statue is silent. In the event, the Statue contemplate particular rate of Tax in respect of a product, which does not admit any debate, then rate of tax applicable will be as specified in the Statute alone. Since the statutory provisions were not brought to the notice of the Court, the judgment of this Court in Dawar Brothers case is a judgment per incuriam. 13. The question as to when a judgment can be said to be per incuriam has been interpreted by the Supreme Court tim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er incuriam means through inadvertence. 15. In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , the Court held that the Court is not bound by earlier decision if it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. The Court held as under:- "40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293] ). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [(1962) 2 SCR 558 : AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.]; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. see also Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675 : (1941) 2 All ER 11. For a Divisional Court decision disregarded by that court as being per incuriam, see Nicholas v. Penny, (1950) 2 KB 466 : (1950) 2 All ER 89.]. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA)], or because the court had not the benefit of the best argument [Bryers v. Canadian Pacific Steamships Ltd., (1957) 1 QB 134 : (1956) 3 All ER 560 (CA) Per Singleton, L.J., affirmed in Canadian Pacific Steamships Ltd. v. Bryers1958 AC 485 : (1957) 3 All ER 572.] , and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or bind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in Dawar Brothers's case that there is no statutory provision, therefore, the judgment of the Division Bench of this Court in Dawar Brothers case is not a binding precedent. It is judgment per incuriam. 20. The judgments of Supreme Court in M/s Vicco Laboratories case deals with classification of the provisions under the Central Excise Tariff Act, 1985. The classification of a product under a statute cannot be read into another statute. Each statute has to be interpreted on the basis of the provisions contained therein. Therefore, classification of the products in the said judgments dealing with the Central Excise Laws are not relevant for examining the classification of the products under the local Act, which have specifically included face cream under the Entry of Cosmetics and tooth paste and tooth powder under the Entry of Toilet articles. 21. In view thereof, we find that the order passed by the learned Single Bench cannot be sustained. It deserves to be set aside and is ordered to be set aside and the writ petition is dismissed. Consequently, the Department shall proceed with the decision on the show cause notice in accordance with the law." In....