TMI Blog2011 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... globule imported by the writ petitioner is entitled to the benefit of item No. 35A for which no tax is payable and direct the assessing authority to act accordingly. - W.P.T.T. No. 60 of 2010 - - - Dated:- 19-4-2011 - Bhaskar Bhattacharya, Sambuddha Chakrabarti, JJ. Rajarshi Bhardwaj for the Petitioner Seba Roy for the Respondent JUDGEMENT Bhaskar Bhattagharya, J:- This application under article 226 of the Constitution of India is at the instance of a dealer under the West Bengal Value Added Tax Act, 2003 ( VAT Act ) and is directed against order dated July 2, 2010 passed by the West Bengal Taxation Tribunal, in RN-134 of 2008 (Hahnemann Publishing Company Private Limited v. State of West Bengal [2011] 41 VST 37), thereby dismissing the appeal preferred by the petitioner challenging the memo No. 3296 dated November 28, 2007 issued by the Sales Tax Officer, Sealdah Charge, by which the writ petitioner was informed that the homoeo globules brought into the State of West Bengal by the petitioner would not fall within Sl. No. 35A of Schedule A to the VAT Act as claimed but would be treated as an unspecified item as per Schedule CA to the VAT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said contention of Mr. Bharadwaj and by placing strong reliance upon the decision of the Supreme Court in the case of Alpine Industries v. Collector of Central Excise reported in [2003] 131 STC 9 (SC) submitted that the Tribunal below rightly relied upon the popular meaning of sugar in preference to its scientific or technical meaning. In support of her aforesaid contention, Mrs. Roy also placed strong reliance upon the following two decisions:- (1) Satyanarayan Bhandar v. State of Orissa reported in [2007] 5 VST 83 (Orissa); (2) Commissioner of Commercial Tax, Indore v. Modern Agency reported in [2006] 146 STC 1 (MP). Mrs. Roy, therefore, prayed for dismissal of the present writ application by affirming the order passed by the Tribunal below. Therefore, the only question that arises for determination in this writ application is whether the homoeo globules containing sugar alone should get the benefit of Sl. No. 35A of Schedule A of the VAT Act under the heading sugar manufactured or made in India or should be placed under the residuary entry. After hearing the learned counsel for the parties and after going through the materials on record, we find that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idyanath Ayurved Bhavan Ltd. v. Collector of Central Excise, Nagpur [1996] 9 SCC 402 where the manufacturer of an ayurvedic dental cream claimed that the product was a medicinal preparation for dental care. Such claim was overruled by the Supreme Court holding that ordinarily, a medicine is prescribed by a medical practitioner and it is used for a limited time and not every day unless it is so prescribed to deal with a specific disease like diabetes and thus, a tooth paste could not be treated as a medicine. In that case, the Supreme Court also relied upon its earlier decision in the case of B. P. L. Pharmaceuticals Ltd. v. Collector of Central Excise, Vadodara [1997] 104 STC 164 (SC) ; [1995] Supp 3 SCC 1 in which the product with trade name selsun used for treatment of dandruff was held classifiable not as a medicament but as a cosmetic product intended for cleansing, beautifying, promoting attractiveness or altering appearance. We, therefore, find that the said decision in the case of Alpine Industries [2003] 131 STC 9 (SC) dealing with the product of lip salve cannot have any application to a case of homoeo globules containing pure sugar which is purer than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbit all forms of sugar, that is to say, sugar of any shape or texture, colour or density and by whatever name it is called. It may be incidentally observed that in the case of State of Gujarat v. Sakarwala Brothers [1967] 19 STC 24, the learned Advocate-General, appearing on behalf of the appellant, contended before the Supreme Court that the word sugar in entry No. 47 had been used in the same sense in which it is used in common parlance and that in common parlance, patasa , harda and alchidana are not commercially known as and cannot be asked for or obtained as sugar and therefore, those items could not be said to be sugar. The aforesaid contention was, however, overruled by the Supreme Court. In the case before us if we look at the Schedule of the VAT Act, we find that in various other entries, after describing the main item, the same is further explained or in some cases, some items are specifically excluded. We propose to give some instances. Item No. 27B is as follows:- Papad commonly known as papar . Thus, after the description of the item, it has been further made clear in what name it is commonly known so that there is no confusion ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of sugar manufactured in India but also sugar mixed with palm juice or molasses, provided those are in the form of misri and batasa respectively, would get the benefit of the said entry notwithstanding the fact that those two items may contain something more than sugar. Misri and batasa added to entry 35A are independent items and not restricted to sugar alone and thus, need not necessarily be made only from sugar. One cannot, therefore, by any conceivable process of reasoning contend that the yellow-coloured batasa mixed with molasses is not a batasa or misri containing palm juice is not misri within the meaning of Sl. No. 35A when those two additional items are also not restricted by any form of user, colour, contents or form as disclosed in respect of some other, items as pointed out earlier. At this juncture, it will be profitable to refer to the decision of the Supreme Court in the case of Mauri Yeast India Pvt. Ltd. v. State of U. P. reported in [2008] 14 VST 259 (SC) where the question was whether yeast comes within the head chemical . It was contended on behalf of the State that yeast being a. living organism could not be a chemical . In that context, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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