TaxTMI 
TaxTMI 
2020 (10) TMI 1292
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....ods and Service Tax Act, 2017 ? 3. As per declaration given by the applicant in Form ARA-01, the issue raised by the applicant is neither pending nor decided in any proceedings under any of the provisions of the Act, against the applicant. 4. As per statement of facts submitted by the applicant- (1) The applicant intends to get the said product manufactured under third party manufacturing by different vendors under drug license. The product would be supplied through pharma distribution channel i.e chemist shop or direct supplies to hospitals. (2) The Composition of Topical Antiseptic solution/Topical Antiseptic Hand sanitiser is as Under Chlorhexidine Gluconate Solution Ip 2.5% v/v Eq to Chlorhexidine Gluconate 0.5% w/v Ethanol IP 70% v/v Excipients q.s. (3) The said Topical Antiseptic solution/Topical Antiseptic hand Sanitiser is described on label as Chlorhexidine Gluconate and Ethanol Antiseptic Solution and topical antiseptic hand sanitiser that kills germs like bacteria, fungi molds and viruses . (4) Topical Antiseptic Solution/Topical Antiseptic hand Sanitiser cannot be used for general cleaning as it does not ....
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....or to that of all other currently available methods of preoperative surgical hand preparation." C) "Skin preparation * Prepare clean skin with an antiseptic (70% alcohol, tincture of iodine, an iodophor or chlorhexidine gluconate) before insertion of a peripheral venous catheter. * Prepare clean skin with a >0.5% chlorhexidine preparation with alcohol before insertion of a central venous catheter or peripheral arterial catheter and during dressing changes. If there is a contraindication to chlorhexidine, use tincture of iodine, an iodophor or 70% alcohol. * Antiseptics should be allowed to dry according to the manufacturer's recommendation before placing the catheter." Pg no 100 D) "Bundle of care for prevention of CLABSI Skin cleaning with alcohol-based chlorhexidine (rather than iodine). Change dressings and disinfect site with alcohol-based chlorhexidine every5-7 days (change earlier if soiled)" Pg no 101" E) "Preparation of the surgical site: alcohol-based antiseptic solutions based on CHG(chlorhexidine) for surgical site skin preparation in patients undergoing surgical procedures (CHG is a better choice than po....
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................ (b)............... (c)............... (d) medicaments (Heading 3003 or 3004); (e)............... xxxx xxxx (3) In common parlance disinfectants are associated with hard chemicals which are not suitable for direct application on living tissue. (4) Ministry of health and family welfare advisory against spraying of disinfectant on human body. It has a mention that "Disinfectants are chemicals that destroy disease causing pathogens or other harmful microorganisms. It refers to substances applied on inanimate objects owing to their strong chemical properties. Chemical disinfectants are recommended for cleaning and disinfection only of frequently touched areas/surfaces by those who are suspected or confirmed to have COVID-19. Precautionary measures are to be adopted while using disinfectants for cleaning - like wearing gloves during disinfection." (5) The HSN Explanatory notes, common parlance, dictionary meaning and Ministry of health advisory all have one thing in common that disinfectants are strong chemicals used for disinfecting inanimate objects, inert surfaces and due to the presence of s....
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....cannot be excluded for heading 3004 (8) All the above uses are for prevention of infectious disease or in other words can be regarded as for "Prophylactic Use" . the heading 3004 of Customs Tariff Act 1975 specifically includes Mixed or unmixed products for therapeutic or prophylactic use. Therefore the said Topical Antiseptic Solution/hand Sanitiser merit classification under heading 3004 and more particularly under 3004 90 87. Reliance is placed on i) Decision of Supreme Court In case of ICPA health Products (p) Ltd vs CCE vadodora (2004 (167) ELT 20 (SC) ii) Decision of CESTAT Mumbai in case of Hagel Capsules Inds. Ltd vs CCCE, Mumbai 2002 (142) ELT (599) (Tri Mumbai) maintained by Supreme Court 2003 (156) ELT A105. (9) It is pertinent to mention that both in case of ICPA supra and Hagel supra the products in question were similar to applicants product containing Chlorhexidine gluconate which is a known and well established antiseptic agent. The Antiseptics are distinguished from disinfectants as antiseptics are used to killing disease causing micro organism on living tissue where as disinfectants are used to kill micro organism on inanimate o....
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....of product. DISCUSSION AND FINDING 9. At the outset, we would like to make it clear that the provisions of both the CGST Act and the UPGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the UPGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / UPGST Act would be mentioned as being under the 'CGST Act'. 10. We have gone through the submissions made by the applicant and have examined the explanation submitted by them. At the outset, we find that the issue raised in the application is squarely covered under Section 97(2)(a) of the CGST Act 2017 being a matter related to classification of goods. We therefore, admit the application for consideration on merits. 11. We observe that the applicant has sought advance ruling on the issue- (1) Whether 'Topical Antiseptic Solution/Topical Antiseptic Hand Sanitiser" is classifiable under HSN code 3004 90 87 (medicament) or 3808 94 00 (disinfectant). (2) ....
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....ermine correct classification, we proceed to examine whether the sanitizers will fall under the heading "3808" provided under entry no. 87 or not and also whether the sanitizers will satisfy the description "Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products" mentioned in the said entry. To determine the same we need to refer to the heading 3808 as specified under the Customs Tariff Act, 1975 and also refer to the rules of interpretation made in this regard. 15. We find that the Heading "3808" under the Customs Tariff Act, 1975 also covers the goods of the same description as provided under entry no. 87 except with the condition that such goods shall be put up in forms or packings for retail sale or as preparations or articles. Further Rule 1 of rules for the interpretation provides that the classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. Now to determine the meaning of the term "disinfectants and similar products" as mentioned in the heading under 3808, we shall have to take recourse to the Explanatory Notes under HSN as i....
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....deficiencies. Therefore, we are of the view that based on the intent emanating from the Explanatory Notes that the goods meant for general hygiene which may prevent the host of illnesses or diseases will not be considered as a medicament. 21. Further, The term 'medicament' as defined in the Oxford Dictionary is 'a substance used for medical treatment' As per McMillan Dictionary medicament is 'a substance used for treating an illness or injury'. The American Heritage Medical Dictionary defines it as 'An agent that prompts recovery from injury or ailment; a medicine'. The term therapeutic as defined in the Oxford Dictionary is a treatment designed to help/treat an illness. As per Collins Dictionary, therapeutic treatment is designed to treat an illness or to improve a person's health, rather than to prevent an illness. Similarly, the dictionary meaning of Prophylactic Uses is a substance or device used for preventing disease. In other words, to determine whether or not a product or a formulation is to be labelled as a 'medicament' it is necessary to consider its efficacy in treating or remedying an 'injury' an 'ailment' an &#....