TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 882
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....also mean a reference to the same provisions under the UPGST Act and vice versa. Brief facts of the case 1. M/s. Dabur India Ltd., Khasra Nos. 2834, 2835, 2836, Amka Road, Dhoom Manikpur, off NH-91, Dadri, Gautam Buddha Nagar, U.P.-203207 (hereinafter called the 'applicant') is a registered assessee under GST having GSTN : 09AAACD0474C1Z3. 2. The Applicant is a Private Limited Company, resident in India, and is engaged in the manufacture of various Fast-Moving Consumer Goods (FMCGs) under various product categories such as Hair Care, Oral Care, Health Care, Skin Care, Home Care, Foods, etc. 3. The Applicant submitted application for Advance Ruling dated 26-12-2018, with an issue :- for the classification of the product Odomos being manufactured and supplied by them. 4. The Applicant was granted hearing on 8-2-2019. Shri Atul Gupta, Advocate and Shri Padmesh Dubey, Senior Associate Manager, Authorized representatives appeared for hearing. 5. After going through the submissions of the applicant and the jurisdictional office, the Authority for Advance Ruling (AAR) ruled as under :- "Odomos is well covered under Chapter 38 of Customs Tariff....
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.... CST' reported in 2004 NTN (Vol-24) 436, High Court Delhi decision in case of 'M/s. Mahinder Kumar Chaudhary v. Balsara Hygiene Products Ltd.' dated 19-12-2001 and copy of VAT invoices in State of Delhi on the subject product odomos showing as medicine only. Discussion and Findings 10. We have gone through the submissions made by the applicant and examined the detailed explanation submitted by them. We observe that the appeal in the instant case is mainly based upon the grounds stated in Para 7 above. The appellant vide his application has prayed : (i) To modify the impugned Advance Ruling Order No. 25, dated 20-2-2019 and allow the appeal holding that the product Odomos is to be classified as 'medicine' under sub-heading 3004 90 99 of the Customs Tariff Act, 1975. (ii) To declare that only 12% GST is payable on the said product as applicable on medicaments. (iii) To pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case. 11. We have gone through the submissions and grounds of appeal of the Applicant and therefore, we discuss the issue point-wise : 12.1 The first issue to be decided....
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....ax Act, 1948. The description of the goods under the said entry reads as - "Medicines and pharmaceutical preparations Including Insecticides and Pesticides" (emphasis supplied). Thus, the said entry included insecticides and pesticides within the broader category of medicines and pharmaceutical preparations. Here it is also pertinent to note that, as also mentioned earlier in this paragraph, 'insecticides' and 'pesticides' are classified under Customs Tariff Heading No. 3808 and 'mosquito repellants' are further classified therein as 'insecticides'. Thus, it is evident that the relevant notification entry comprised the goods of both the rival headings of the Customs Tariff germane to the instant case. In the context of the above, it may be further noted that the Hon'ble High Court held that the said product was used as a mosquito repellant and is a preventive medicine (emphasis supplied), preventing the body from being infected by the bite of mosquitoes. Thus, we observe that in the above cited case, there was no occasion for the Hon'ble High Court to examine and give a decision on the relative merits of the two rival classifications presen....
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.... introduction of GST and the packing thereof bears a clear declaration that the product therein is a mosquito repellent cream. Regarding the technical aspect of classification, "The General Rules for the Interpretation of Import Tariff' stipulate [in Rule 3(a) thereof] that the heading which provides the most specific description shall be preferred to headings providing a more general description. Undoubtedly, the description under Heading No. 3808 91 '91, i.e., "Repellants for insects such as flies, mosquito" is far more specific as compared to the description under the other heading under consideration, i.e., Heading No. 3004 90 99 which is "Other" (meaning medicaments other than all those explicitly specified in the other sub-headings of Heading No. 3004). Evidently, the latter heading is a residual classification while the former is specific and conforms to the description of the goods adopted by the appellants themselves for the purposes of packing as well as advertisement and publicity. Moreover, besides the stipulation of the aforesaid interpretation rules, the Hon'ble Supreme Court also, in their judgment in the case of 'H.P.L. Chemicals Ltd. v. CCE, Chandig....
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....subject goods, is to save and protect themselves from mosquito bites even if there is no or negligible incidence of mosquito borne diseases in their localities. This is also borne out by the fact that odomos is not normally prescribed as a medicine by a registered medical practitioner and is available in stores and establishments of all types including "kirana stores", their sale not being restricted to chemists/ druggists alone. It neither controls the disease for which mosquitoes are carrier nor develops preventive characteristics inside human body to fight against vector borne diseases. Therefore, the market identity in common parlance of the subject goods is as a mosquito repellent and their usefulness in preventing mosquito borne diseases (again derived from their characteristic quality of being a mosquito repellent) is of a subsidiary/ supplementary nature. 13.7 The Applicant have laid much stress on the fact that the manufacture of the subject goods is regulated under the "Drugs and Cosmetics Act, 1940" (Drugs Act) to contend that these are medicaments. However, first of all, as stated hereto before, the primary test of classification is that of common parlance, applying wh....