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2014 (5) TMI 368 - HC - VAT and Sales TaxRate of Tax – ‘Ramtirth Brahmi Oil’ – ‘Hair oil or medicament’ - Classification - Entry 1(ii) of Part F or Entry 20 Part C of 1st Schedule – Held that:- The Revenue has not produced any material or has disputed the materials produced by the assessee to support its contention that Ramtirth Brahmi Oil was ever sold as a hair oil and not as medicament - It is a settled principle of law that the onus to prove that a particular product falls under a particular head of the Schedule is on the Revenue - It is for the Revenue to show and establish that the goods in question is not a medicament or that the common man did not treat it as a medicament. - Refer Commissioner of Central Excise Vs. Sharma Chemical Works [2003 (4) TMI 102 - SUPREME COURT OF INDIA] and Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner, Central Excise, Nagpur [2006 (3) TMI 141 - SUPREME COURT OF INDIA] Relying upon Commissioner of Central Excise, Delhi v. Ishaan Research Lab (P) Ltd.) [2008 (9) TMI 4 - SUPREME COURT] - In laying down the principles for classification, SC pointed out that the extent of a small percentage of ingredients having therapeutic or prophylactic value and use of the product for beautification, would not, ipso facto, make a product a cosmetic preparation - The Apex Court pointed out that the common parlance test is not be all and end all of the matter and merely because a product could be put to cosmetic use, that would not, by itself, make it a cosmetic product - The claim that it is an ayurvedic product must be substantiated on factual basis. Entry 1(ii) of Part F of the I Schedule deals with hair oils, hair creams, hair dyes, etc., and the Explanation to the said entry stated that any of the items, even if medicated, or as defined under Section 3 of the Drugs and Cosmetics Act, or manufactured on the licence issued under the said Act, will fall under this item - Thus, if an item has to fall under Part F Entry 1, even going by the Explanation, a medicated oil has to be a hair oil simpliciter - However, if medicated oil is not sold just as a hair oil, but, as already pointed out in the preceding paragraqph and as certified by the Director of Ayurveda that it has multifarious functions and one of which happens to be for the scalp or for the hair, it would not make the oil sold by the assessee, a pure and simple hair oil - In the background of the decision of the Apex Court reported in Meghdoot Gramodyog Sewa Sansthan Vs. Commissioner of Central Excise, Lucknow [2004 (10) TMI 93 - SUPREME COURT OF INDIA] and the contemporaneous treatment given to the item Ramtirth Brahmi Oil by the other States, there is no hesitation in confirming the order of the Tribunal, thereby rejecting the Revenue's appeal - In the result, the Tax Case Revision is dismissed and the order of the Tribunal is confirmed – Decided against Revenue.
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