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By: Dr. Sanjiv Agarwal
April 19, 2021
All Articles by: Dr. Sanjiv Agarwal       View Profile
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In one of the cases, the manufacturers of Odomos (mosquito repellant ointment) i.e., Dabur India Ltd. sought clarity on classification of ‘Odomos’ as to whether it is a repellant or a medicine.

The assessee was engaged in the manufacture of various Fast-Moving Consumer Goods (FMCGs) under various product categories such as hair care, oral care, health care, skin care, home care, foods, etc.

The Applicant submitted application for Advance Ruling dated 26-12-2018, for seeking ruling for the classification of the product ‘Odomos’ being manufactured and supplied by them. The Authority for Advance Ruling (AAR) ruled vide Order dated 20.02.2019 [IN RE: M/S. DABUR INDIA LTD - 2019 (2) TMI 1914 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH] ruled that "Odomos is well covered under Chapter 38 of Customs Tariff Act and is classifiable under HSN Code 3808 91 91".

Being aggrieved by the ruling, assessee preferred an appeal u/s 100 of the CGST Act, 2017 before the AAAR, Uttar Pradesh (AAAR) on the following grounds:

(a)        The impugned order is illegal and not sustainable because the Authority ignored the comments submitted by the department in response to the Application filed by the Appellant.

(b)        The impugned order is illegal as the same has not followed the binding precedent for the same product as decided by the  Allahabad High Court. [COMMISSIONER OF SALES TAX VERSUS BALSARA HYGIENE PRODUCTS LTD. - 1985 (12) TMI 366 - ALLAHABAD HIGH COURT].

(c)        The impugned order is based on extraneous consideration and therefore, the same was not sustainable.

(d)        The product in question is not repellent but medicine; therefore, the same is not classifiable under Chapter 3808 of the Customs Tariff Act adopted for the purpose of classification of products under GST Law.

The AAAR observed that the ruling has been given by the AAR by way of a speaking order and there was no evidence that it has been passed in an arbitrary manner. Therefore, the impugned Order passed by the Authority cannot be held unsustainable on this ground.

On Allahabad High Court’s Balsara judgment , it observed that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948.

On classification of product, ‘Odomos’ it held that the description under Heading No. 3808 91 '91, i.e., "Repellants for insects such as flies, mosquito" is far more specific as compared to the description under the other heading under consideration, i.e., Heading No. 3004 90 99 which is "Other" (meaning medicaments other than all those explicitly specified in the other sub-headings of Heading No. 3004). Evidently, the latter heading is a residual classification while the former is specific and conforms to the description of the goods adopted by the appellants themselves for the purposes of packing as well as advertisement and publicity.

The Supreme Court also, in the case of HPL CHEMICALS LTD. VERSUS CCE, CHANDIGARH - 2006 (4) TMI 1 - SUPREME COURT held that specific heading is preferable over residuary heading for classification. Therefore, in terms of the aforesaid rules for interpretation, Heading No. 3808 91 91 will prevail over 3004 90 99.

It was observed that the appellant declares prominently on the packing of the goods under reference that it is "mosquito repellent cream". The advertisement and publicity of these goods was also done as a mosquito repellent. It would also not be out of place to mention that the appellant's own website, describes Odomos as a 'mosquito repellent' - the market identity in common parlance of the subject goods is as a mosquito repellent and their usefulness in preventing mosquito borne diseases (again derived from their characteristic quality of being a mosquito repellent) is of a subsidiary/ supplementary nature.

Also, the substance DEET is mentioned in the schedule to the "Insecticides Act, 1968" as an insecticide and by corollary, its improved version, i.e., NNDB would also be an insecticide. In this context, it is pertinent that mosquito repellents are classified at Heading No. 3808 91 91 of the Customs Tariff as a subcategory of insecticides. Thus, this again indicates that even by applying the yardstick of chemical composition, Heading No. 3808 91 91 is most specific for the classification of the subject product.

All the factors relevant for classification under the Customs Tariff lead to the classification of the Applicants' product "Odomos" under Heading No. 3808 91 91, be it the rules for interpretation of the said Tariff, the common parlance test, its chemical composition or its usage and way of working. Hence, Odomos is a mosquito repellent and has to be classified under Chapter Heading 3808 91 91 of the Customs Tariff Act.

In view of such findings, the AAAR upheld the ruling of AAR  that "Odomos is well covered under Chapter 38 of Customs Tariff Act and is classified under HSN 3808 91 91".

The appeal was therefore, dismissed. [IN RE : DABUR INDIA LTD. - 2020 (1) TMI 882 - APPELLATE AUTHORITY FOR ADVANCE RULING UTTAR PRADESH].


By: Dr. Sanjiv Agarwal - April 19, 2021



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