2019 (2) TMI 1914

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....the application form for Advance Ruling) along with annexure and attachment. 4) The Applicant in his application has sought clarification and Advance Ruling for classification of the product Odomos being manufactured and supplied by them. 5) The application for advance ruling was forwarded to the Jurisdictional GST Officer to offer their comments/views/verification report which was received in this office vide C. No. 20-CGSTR/R-34/DIV-VII/GZB/03/2019/28 and 34 date 29.01.19. 6) The applicant was granted a personal hearing on 08.02.2019. Shri Atul Gupta, Advocate and Shri Padmesh Dubey, Senior Associate Manager, Authorized representatives on behalf of applicant appeared for hearing. During the personal hearing they submitted/stated that they have already submitted views in their letter dated 26/12/18 and they would like to reiterate the same. During the PH, party also submitted compilation of case law and details of classification, they specifically relied on the decision of CST vs Balsara Hygiene products Ltd. UPTC 367 (All.) passed by Allahabad High Court holding odomos as medicament. They also submitted that the said decision Allahabad High Court was upheld by Hon&#39....

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....man body. However, Odomos is a product which is applied on human body to prevent mosquito bite. v) The Applicant submits that Odomos contains NNDB as an active ingredient which works by interfering with the mosquito's olfactory receptors. When Odomos is applied to human skin, it acts as a bar to the olfactory receptors of the mosquitos for 1-octen-3-ol, a volatile substance secreted by humans and thus, prevents them from detecting and biting humans. In other words, Odomos does not kill/attract/repel mosquitoes but prevents mosquitoes from detecting foods source i.e. human blood. vi) NNDB forms active compound in Odomos. An active ingredient imparts its essential character to the product. Therefore, Odomos, being a preparation from NNDB, qualifies as a drug under Indian pharmacopoeia. Moreover, Odomos is also manufactured and sold under the license granted under Drugs and Cosmetics Act, 1940. Drug Controller of various State Authorities has recognized Odomos as a drug and granted license to the Applicant to this effect. 9) As per the understanding of the applicant, in its submission, applicant submitted that, the product 'Odomos' containing NNDB - 12....

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..... iv) It is submitted that diseases are classified based on the medium, for e.g. vector borne diseases, water and air borne diseases etc. The term 'vector borne diseases' refer to illnesses transmitted by vectors, such as mosquitoes, ticks and fleas etc. v) It is further submitted that even itching, redness and swelling caused in skin upon mosquito bite is because of an allergic reaction to anticoagulants and enzymes present in mosquitoes' saliva. Thus, mosquito bites inevitably lead to allergies even where the harmful diseases are not transmitted. From the above, it is clear that mosquito bites form a cause of diseases. vi) Odomos aids in preventing life threatening diseases as well as in protecting human skin against the effects of a mosquito bite. Thus, it would be covered under the scope of the expression 'medicament'. 11) The Applicant relies on the HSN Explanatory Notes of Chapter Heading 3004 which are:- "This heading covers medicaments consisting of mixed or unmixed products, provided they are:- (b) In packings for retail sale for therapeutic or prophylactic use. This refers to products (for example, sodium....

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....hapter 38 of Customs Tariff Act covers a range of products (other than those having the character of medicaments, including veterinary medicaments-heading 30.03 or 30.04) intended to destroy pathogenic germs, insects, (mosquitoes, moths, Colorado beetles, cockroaches, etc.) mosses and moulds, weeds, rodents, wild birds, etc. products intended to repel pests. As far as the decision of Hon'ble High Court reported at CST Vs S/S Balsara Hygience Products Limited, 1986 UPTC 367 (All.), is concerned we find that Hon'ble Court has passed the judgment under section 11 (1) of the U.P. sales Tax Act, where the process of assessment is different, and in that case classification was decided, on the basis of common parlance, to fix the rate of sales tax applicable on Odomos, whereas in this case classification of the goods in question is to be decided under GST Law where all goods have been notified by the government under six schedules for various rates vide Notification no 1/2017-central Tax (Rate)and under the notification it is categorically mentioned that tariff item, sub heading, heading and chapter shall mean respectively a tariff item, sub heading, heading and chapter as spec....