TMI Blog2019 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... t.Ltd. which was taken note of in the afore mentioned decision. Furthermore, the literature also clearly described the product as an Ayurvedic Proprietary Medicine. Therefore the tribunal could not have adopted the common parlance test - the product is Ayurvedic Proprietary Medicines and direction was issued to the Assessing Authority to treat the items as Ayurvedic preparations and tax accordingly. We have informed that the order passed by the Kerala Sales Tax Tribunal has attained finality and the appellant therein, the person who purchased the product from the petitioner before us has also been granted refund. Since the product is same, the factual finding will bind the respondent department, though the decision was rendered by a tribunal in the State of Kerala. The revenue has not been able to bring down any material to dislodge the factual finding recorded by the Tribunal duly supported by expert opinion. Therefore, the second ground on which the tribunal refused the relief to the petitioner deserves to be set aside. Third and the last ground is that the product is marketed through multi level marketing and not sold in all the shops - Held that:- This can hardly be a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se is that they imported Ayurvedic Bulk Reishi Gano Powder and Gano Celium Powder from Malaysia. After which they have given on job work basis to other companies to be filled in the capsules. Initially, the job work was given to M/s.Madras Pharmaceuticals, in Chennai. After the manufacturing process, the marketing of the product was done by the petitioner from January 2002 to May 2002. Subsequently, the petitioner started purchasing the filled up capsules from M/s. DXN Herbal Manufacturing (India) Private Limited, Puducherry. Thus the petitioner became a mere trader of the said product. The petitioner collected 4% on the sale of the product as they contended that it is an Ayurvedic proprietary Medicine. 5. The dispute in the instant case is with regard to the rate of tax which was levied by Assessing Officer, whether the same was right and whether the First Appellate Authority and the Tribunal were correct in confirming the order of the Assessing Officer. The reason given by the Tribunal for treating the product as one to fall under the residuary deal or on the three grounds namely, the product is imported product, secondly, it is not an Ayurvedic medicine to food supplement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,20,30,60,90 100. The license contains various conditions. There is an annexure to licence, which states the list of Ayurvedic Proprietory Preparation, which has been permitted and the composition of the capsule which is as follows: 1. Cap.REISHI GANO (RG) Each capsule contains, CHATRAKH: 250 mg (Ganoderma) BHUCHATRA :20 mg (Shitake) 2. Cap.GANOCEILIUM (GL) Each Capsule contains, CHATRAKH: 425 mg (G.Mycelium) BHUCHATRA: 25 mg (Shitake) Packing Size : 4,10,20,30,60,90 100 capsule. 10. The petitioner's license is further renewed on 14.01.2004 and to that effect Form 26-D was issued. Similarly, such renewal was effected on 17.01.2006 as well. The Government of Pondicherry, Food and Drugs Administration, issued a Certificate of Good Manufacturing Practices (GMP) to the petitioner vide certificate dated 21.04.2004. The said certificate was consistently granted to the petitioner in the year 2006, vide certificate dated 06.06.2006. The petitioner has obtained the registration under the provisions of the Central Excise Act in Form RC dated 23.02.2004. They have also obtained a license from the Ministry of Commerce Industry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson who purchased the product from the petitioner before us. The question which was decided by the tribunal was whether the items Ganocelium Capsules and Reishi Gano are Ayurvedic Proprietary Medicines, items coming under Entry 141 of the First Schedule to the Kerala Sales Tax Act. The appellant therein, the person who purchased the product from the petitioner produced several documents in support of their claim which are in the nature of the expert opinion rendered by scientists. They being 1. The medicinal Mushroom by R.D. Rai, National Centre Mushroom Research and Training Chambhat Solam: 2. Medicinal Mushroom by B.Balakrishnan M.C.Nair, Department of Pathology College of Agriculture, Vellayani, Kerala. 3. Letter addressed to Vaidya Visarada Ayurveda Siromani Dr.K.S.Viswanth Sarma by Daeshan Trading T.Nagar, Chennai and reply to that letter by Dr.K.S.Viswanatha Sarma: 4. Literature about Relshi (Ganoderma Lucidum): and relevant portion of the Book Relshi Mushroom Herb of Spiritual Potency and Medical Wonder by Terry Willard, Ph.B., Research by Kenneth Jones. 9. The Kerala Sales Tax Tribunal took note of the above expert opinion, and noted that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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