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2020 (4) TMI 413 - SC - VAT and Sales TaxClassification of goods - rate of tax - Medical Oxygen IP - Nitrous Oxide IP - taxable under Entry 88 of Schedule IV of the Andhra Pradesh Value Added Tax Act 2005 or as “unclassified goods” under Schedule V? - HELD THAT:- Entry 88 includes drugs and medicines, whether patent or proprietary as defined in clauses (i), (ii) and (iii) of Section 3(b) of the 1940 Act. Any drug or medicine that falls within the ambit of clauses (i), (ii) and (iii) of Section 3(b) falls within the ambit of Schedule IV. Entry 88 also stipulates that hypodermic syringes, hypodermic needles, catguts, sutures, surgical cotton, dressing, plasters, catherters, cannulae, bandages and “similar articles” are also included, save and except for the three specified exclusions. The judgments in PANKI OXYGEN THRU' PARTNER SUMIT BABBAR VERSUS STATE OF UP. THRU' PRINCIPAL SECRETARY TAX & REGD. & ORS. [2014 (2) TMI 764 - ALLAHABAD HIGH COURT] and THE STATE OF TAMIL NADU, REPRESENTED BY THE DEPUTY COMMISSIONER (COMMERCIAL TAXES) VERSUS RAM OXYGEN (PVT.) LTD. [2010 (6) TMI 710 - MADRAS HIGH COURT] highlight the curative and instrumental use of Medical Oxygen IP and Nitrous Oxide IP in the mitigation and prevention of disease or disorder. Nitrous Oxide is used as anesthetic agent. Medical oxygen with 99.9% purity is predominantly used in hospitals. Medical Oxygen is also used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. It is utilised to prevent a sudden collapse of patients and to aid in the recovery of health. As stated in the Counter Affidavit filed by the respondents, in order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions. There is no doubt that Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act. Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the 1940 Act and are consequently covered in Entry 88 of the 2005 Act. The impugned judgment of the High Court, to the extent it held that Medical Oxygen IP and Nitrous Oxide IP fall within Entry 88 of the 2005 Act is upheld - appeal dismissed.
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