2013 (4) TMI 22

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..... problem and not as an ordinary talcum powder. Considering the all over facts and circumstances of the case, we are of the opinion that the item dermicool powder must be held to be a medicine taxable under Entry 11, and not a medicinal preparation of a cosmetic within the meaning of those words as used in Entry 41 or 49 quoted above. - W.P. No.1486/2009 - - - Dated:- 2-2-2012 - SUSHIL HARKAULI AND TARUN KUMAR KAUSHAL JJ. Shri Sumit Nema, Advocate with Shri Mukesh Agrawal, Advocate for the petitioner. Shri Vivek Agrawal, G.A. For the respondent/State. We have heard learned counsel for the parties. In the earstwhile M.P. Commercial Tax Act 1994 the duties payable on various categories of item are prescribed in Schedule II. .....

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..... he petitioner regarding Borosoft Lotion was abandoned on the ground that manufacturing of this item has stopped. The learned counsel for the petitioners has conceded that Borosoft Natural and Borosoft Cream are items which can be used to treat specific medical conditions and can also be used otherwise by persons who are not suffering from any such medical problems, for enhancement of beauty, and therefore these items would be taxable under Entry 41 of Part-III of Schedule- II. The learned counsel for the State has conceded that the item Itch Guard Cream is used only for treatment of certain medical conditions and cannot be used otherwise merely for cosmetic purposes and therefore this item would fall within the Entry 11 of Part-IV of Sc .....

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..... rtain medical conditions and not otherwise, again it would not fall within the Entry 41 or 49. Prickly heat powders are normally used only for relieving prickly heat problem. In fact in the case of Puma Ayurvedic Harbal (P) Ltd. vs. Commissioner, Central Excise, Nagpur reported in (2006) Vol.1 45 STC 200, the Supreme Court was examining the difference between cosmetic and medical preparation, although in the context of central excise. In that decision the Supreme Court has referred to the decision reported in (2004) 167 ELT 374 wherein Johnson Prickly Heat Powder was held to be medicinal because it was not ordinary talcum powder but was a powder to be used to treat the problem of prickly heat. The Supreme Court also cited the case reporte .....

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