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2014 (6) TMI 861 - HC - VAT and Sales TaxClassification of “RA THERMOSEAL” and “THERMOSEAL” - medicine or toothpaste - Interpretation of Schedule Entry C-I-24 of the BST Act - whether the products of assessee are excluded from Schedule Entry C-I-24 by virtue of the fact that they are products capable of being used as a toothpaste - Held that:- On a comparison of Schedule Entry C-I-24 (before amendment) and C-II-37 (after amendment), it is clear that with effect from 01-10-1995, the exclusions appearing in the “medicines” Entry C-I-24 at (a), (b) & (c) were deleted from the new “medicines” Entry C-II-37, thereby expanding the scope of the Entry relating to “medicines” - products used by people as a toothpaste with a view to clean the teeth as part of one's daily exercise, is commonly understood as a toothpaste. Similarly, if such products besides cleaning the teeth also serve as a preventive measure by virtue of some medicinal contents therein, then it can be called as a “medicated toothpaste”. From the advertising material, it is clear that the Applicant itself claims that the said products have been specifically formulated with a pleasant fresh taste and low abrasive formula for cleaning the teeth and leaving the mouth tingling fresh. Even the said products are marketed as “No.1 toothpaste for sensitive teeth”. To our mind therefore, it is clear that though the said products of the Applicant are “medicines”, that would fall under Schedule Entry C-I-24, the same would be excluded from the said Entry by virtue of the exclusion clause therein viz. “Products capable of being used as toothpaste, tooth powders, cosmetics, toilet articles and soaps”. Even applying the common parlance test, we have no hesitation in holding that though the said products of the Applicant fall within the “medicines” Schedule Entry C-I-24, they are products capable of being used as a toothpaste and would therefore be excluded from the said Entry. Even if one were to apply the common parlance test to the said products of the Applicant, they would be “products capable of being used as toothpaste” and therefore, excluded from Schedule Entry CI- 24. In this regard, the reliance placed by Mr Sonpal, on the judgment of the Supreme Court in the case of Commissioner of Central Excise, New Delhi v/s M/s Connaught Plaza Restaurant (P) Ltd., New Delhi,[2012 (12) TMI 149 - SUPREME COURT] is well founded. This being the position, the MSTT was fully justified in coming to the conclusion in its order dated 12th January 2001 that the said products of the Applicant were capable of being used as a toothpaste which was specifically excluded from the “medicines” Schedule Entry C-I-24. The said products of the Applicant, despite having the basic character of “medicines”, did not fall in the “medicines” Entry C-I-24 because of the exclusion contained therein - Decided against assessee.
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