2023 (9) TMI 708 - ORISSA HIGH COURT

Classification of services - HIMANI BOROPLUS ANTISEPTIC CREAM - Medicament or not - to be classified as medicines falling within the scope of Entry 46 of Part-II of Schedule B appended to the Orissa Value Added Tax Act, 2004 - HELD THAT:- Reliance placed on judgment of the Supreme Court in Puma Ayurvedic Herbal (P) Ltd. v. Commissioner, Central Excise, Nagpur, [2006 (3) TMI 141 - SUPREME COURT], in which the two tests were accepted.

There can be no fact finding in adjudication of the revision petition. Keeping that in mind we have to understand what are the two tests that have been accepted by the Supreme Court. The first test is common understanding of the product to be a medicament, which is called the common parlance test. A user of the product would use it only for treating a particular ailment and stop its use after the ailment is cured. The second test is regarding ingredients used in the product, whether mentioned in authoritative textbooks on Ayurveda.

The Tribunal did not direct remand, for ascertaining the question of fact regarding ingredients of the product. Instead, without itself ascertaining on the fact, it went on to dismiss the appeal of revenue.

There was no satisfaction rendered by opposite party (assessee) on the second test. It must be said that it was for opposite party to prove the product fell under the entry as the Tribunal erred in saying the burden was on petitioner (Revenue) to prove the negative.

Coming back to the first test, on perusal of both, impugned order as well as the one made by the Commissioner carrying concurrent findings, we have been unable to notice that there was finding also on fact, regarding common parlance test. It must be mentioned here that the advertisement relied upon by petitioner was so done at this stage and not in the earlier proceedings, ascertained by us on query made. Hence, we disregard the advertisement in our adjudication.

Revision disposed off.