AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 361
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....ds manufactured by the applicant in the Entry 4/7 (from 1.1.2000 to 14.03.2000) or Entry 41/49 (15.03.2000 to 31.03.2006) of Part III Schedule 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?" 03. The facts of the case reveal that M/s. Emami Limited having Tin No.23320900483 made an application under Section 70(1)of the M.P. Commercial Tax Act, 1994 for requiring M.P. Commercial Tax Appellate Board to refer question of law arising out of its common order dated 21.02.2017 passed in Appeal No.A/410/06 (1999-2000), Appeal No.A/411/06 (2000-2001), Appeal No.A/223/07 (2001-2002), Appeal No.A/222/07 (2001-2002), Appeal No.A222/08 (2002-2003), Appeal No.A/620/08 (2003-2004), Appeal No.A/192/09 (2004-2005) and Appeal No.A/174/10 (2005-2006). 04. The facts of the case reveal that M/s. Emami Limited is engaged in the business of manufacturing and sale of various types of drugs and medicines and other products. The issue involved in the present tax reference relates to classification of the following five products sold by the applicant in the State of Madhya Pradesh for the purpose of l....
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....of the opinion that the aforesaid products fell under category of "Toilet articles...." covered by Entry 2 of part III of Schedule II of the said Act and, therefore, tax at the rate of 12% in respect of Vicco Vajradanti (paste and powder) and at the rate of 16% in respect of Vicco Turmeric cream as applicable to cosmetics under Entry 21 part II of Schedule II of the said Act. The petitioners were, therefore, called upon to pay Sales Tax at the rate of 12% and 16% in respect of the Sales of Vicco Vajradanti (Paste and Powder) and Vicco turmeric Cream respectively. The petitioner paid the tax in advance on the basis of the quarterly returns accordingly as demanded by the respondent No.1 at the rate of 12% and 16% under protest. 04. The argument of the Learned Counsel for the appellant is that the Division Bench has not noticed that the specific provisions of the Madhya Pradesh General Sales Tax, 1958 as the entries in the Statute itself are clear and that no external aid is necessary to examine the scope and ambit of the entries in the Act in question. The relevant classification as reproduced by the writ petitioner in the writ petition in Schedule II reads as under:- Entry No. ....
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....son affected by the levy to decide as to under which head it should be classified and there, perhaps, it may be correctly observed that the Court or Tribunal deciding the matter must lean in favour of the subject and against the Revenue. That principle has been properly applied by us in order to determine that the two products V. Vajradanti and V. Turmeric, would be covered by Entry 14E and not Entries 14F and 14FF respectively. ....................." 07. The said order of the Division Bench of Bombay High Court was challenged before the Supreme Court in Special Leave to Appeal No.1918 of 1989. The petition was dismissed on 6.9.1990 for the reason that the Union of India has not been able to make out reasons for condonation of delay. But, in an appeal against an order passed by the Bombay High Court in Writ Petition No.2193/2005, dated 07/10/2006, the Supreme Court examined the issue in a judgment reported in (2005) 4 SCC 17 (Commissioner of Central Excise Vs. Vicco Laboratories). The Court held that the product is to be classified as pharmaceutical product for levy of excise duty under Chapter 30 and not as cosmetic under Chapter 33 of the Central Excise Tariff Act, 1985. The ....
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....and medicines, therefore, the provisions under consideration required to be given meaning in trade. The argument of the revenue, as recorded in the order, reads as under:- "4. The case of the Revenue is that since the taxing statute did not define "drugs and medicines", the disputed products required to be given their trade meaning and treated as such and not under the category of "drugs and medicines" as these contained no substance or preparation used in prevention or treatment of a disease and could not be credited with any curative power. It is also submitted that even the assessee was selling these products as cosmetic items and not medicines. Lastly it is argued that mere obtaining of licence by the assessee under the Drugs and Cosmetics Act, could not clothe these products with medicinal properties and bring them under "drugs and medicines" and that the judgments of the Bombay and Karnataka High Courts [United Trading Agency v, Additional Commissioner of Commercial Taxes [1997] 104 STC 182 (Kar)] were referable to some other enactments and Acts and were not attracted to point in issue." 11. The said argument of the revenue is factually incorrect. No doubt the drugs and m....
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.... case [AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] . See Hulsbury's Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293, 300] Also see the observations of Lord Goddard in Moore v. Hewitt [(1947) 2 All ER 270, 272-A] and Penny v. Nicholas [(1950) 2 All ER 89, 92-A] . "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling [(1955) 1 All ER 708, 718-F] . Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985 Supp SCC 280 : (1985) 3 SCR 26] We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong. "47...............We are of the opinion that Shri Jethmalani is not right when he said that the dec....
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....ub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675, 677 : (1941) 2 All ER 11] the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. [(1989) 1 SCC 101]............" 16. In a judgment reported as Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262 the Court held that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. 17. In another judgment reported as State of Bihar v. Kalika Kuer, (2003) 5 SCC 448, the Supreme Court quoted from Halsbury's Laws of England (4th Edn.) Vol. 26 to hold that a decision is per incuriam which is give....
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....ee Bonsor v. Musicians' Union, 1956 AC 104 : (1955) 3 All ER 518 (HL).] . Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake." [Williams v. Glasbrook Bros. Ltd., (1947) 2 All ER 884 (CA)] Lord Godard, C.J. in Huddersfield Police Authorities case [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.] observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. (emphasis supplied) 18. A Division Bench of this Court in a judgment reported as State of M.P. v. Shiv Shankar, (2000) 1 MP LJ 156 held that the doctrine of per incuriam only applies where another Division Bench of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the Cou....