TaxTMI 
TaxTMI 
2022 (7) TMI 519
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.... arise out of the Determination Order passed by the Deputy Commissioner of Sales Tax under Section 62 of the GST Act by which the Deputy Commissioner held that the product in question - KADIPROL would be covered as "Drug and Medicine" under Entry 26(1) of Schedule II Part A of the GST Act. 2.1 The respondent filed an application before the Deputy Commissioner of Sales Tax under Section 62 of the GST Act to determine the rate of tax on "KADIPROL" sold under their invoice dated 20.03.1989. The respondent also preferred an application before the Assistant Commissioner, Food and Drugs Control Administration regarding whether the respondent is required to obtain a license under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "Act, 1940") for manufacturing the product "KADIPROL". That, the Authority under the Act, 1940 informed the respondent that the license for manufacturing of product "KADIPROL" under the Act, 1940 was not required. However, the Deputy Commissioner of Sales Tax, by his order dated 16.04.1990 held that the product in question contains some preventive medicine and therefore, categorized as "Drug and Medicine" as per Entry 26(1) of Schedule II Part A of th....
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....itted that therefore the predominant purpose for which the product in question was used by persons rearing poultry is to eliminate subclinical coccidian infection. It is submitted that the indirect effect of the said drug is only consequential and may be to improve the health of the poultry or help in growth of poultry. It is submitted that however that does not dilute the main purpose of the ingredients, the composition as well as the purpose for which it was administered. It is submitted that therefore the product would fall under Entry 26(1) of Schedule II Part A of the GST Act as "Drug and Medicine". 4.4 It is further submitted on behalf of the State that a drug can be administered either for prevention or treatment of disease. The Deputy Sales Tax Commissioner considering the expert literature specifically held that the drug is to ensure that an infectious disease does not spread and was administered to the poultry feed as a "preventive measure". It is submitted that if the nutrition is not for predominant purpose, then the product cannot be 'poultry feed'. 4.5 It is submitted that the Tribunal considered the decision of the High Court in the case of State of Gujarat vs. M/s....
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....at merely because these products can be used for improving egg production and increase in growth rate of broilers would not in any way detract from the fact that said products are medicine. It is submitted that in the present case also, "KADIPROL" is used for the purpose of prevention and treatment, with an indirect positive consequence for the health of the poultry. 4.8 Making above submissions and relying upon above decisions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and restore the decisions of the Sales Tax Tribunal as well as the Deputy Sales Commissioner and to hold that the product "KADIPROL" can be categorized as "Drug and Medicine" under Entry 26(1) of Schedule II Part A of the GST Act and not as "poultry feed" falling under Entry 25 of Schedule I of the GST Act. 5. Present appeal is vehemently opposed by Ms. Kavita Jha, learned Counsel appearing for the respondent. 5.1 Ms. Jha, learned Counsel appearing for the respondent - dealer - assessee has submitted that as such as on date there is no existing demand on the respondent pertaining to the issue and even all the assessments under the GST....
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....aboratories (India) Limited vs. State of Gujarat (1979) 43 STC 386 (Guj) (2) Glindia Ltd. vs. Union of India 1989 (22) ECC 311 (3) State of Gujarat vs. Pfizer Ltd. (1991) 82 STC 374 (Guj) (4) Sun Export Corporation vs. Collector of Customs, Bombay (1997) 6 SCC 564 (5) M/s. Golden Streak Drug & Pharmaceuticals Ltd., Lucknow vs. Commissioner Trade Tax Lucknow 2017 TIOL 2502 HC ALL CT 5.5 It is submitted that the product "KADIPROL" is added to "poultry feed" so as to make good deficiency of Vitamin K. The product "KADIPROL" is aimed at preventing loss of blood in the intestine by enhancing clotting time of blood in birds. It is submitted that the said product is an essential poultry feed supplement and is liable to be classified as "poultry feed" under Entry 25 of Schedule I of the GST Act. 5.6 It is further submitted by Ms. Jha, learned Counsel appearing for the respondent that this Court has consistently taken the view that in determining the meaning of an article in a tariff schedule, one principle which is fairly wellsettled is that those words and expressions should be construed in the sense in which they are understood in the trade by the dealer and the consumer. ....