TMI Blog1998 (1) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... ? 2.. Respondent herein is an assessee under the Kerala General Sales Tax Act, 1963 (hereinafter for short the Act ). The assessee deals in wholesale trade of vicco vajradanti (paste and powder) and vicco turmeric, products of M/s. Vicco Laboratories, Bombay. The assessment for the above mentioned two years were completed by accepting the return filed by the assessee levying sales tax at the rate of 6 per cent as ayurvedic medicines and drugs. The Deputy Commissioner, Ernakulam, by exercising his power of suo motu revision under section 35(1) of the Act set aside the assessments as irregular and improper. He took the view that though the above mentioned products are manufactured on ayurvedic formula, they are not used as medicines for cure of any disease but they are being used as tooth paste and tooth powder and vanishing cream. In common parlance these articles are considered to be toilet articles and vanishing cream and not as ayurvedic medicines. Therefore, vicco vajradanti has to be taxed at the rate of 8 per cent as tooth paste and tooth powder and vicco turmeric at the rate of 10 per cent as cosmetic. Aggrieved by the order passed by the Deputy Commissioner the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore cannot be covered under the existing ISI. The institution was not handling standardization of drugs whether allopathic, ayurvedic or unani. Similar view was taken in the case of vicco vajradanti tooth powder also. The Board of Revenue, Madhya Pradesh and Sales Tax Appellate Tribunal of Madras and Tamil Nadu had also taken the view that the above mentioned products are ayurvedic medicines. Apart from these and other materials the assessee relied on a Bench decision of the High Court of Bombay in First Appeal No. 613 of 1992 dated April 27, 1988. The question that arose for consideration in the above decision was whether vicco vajradanti tooth paste and vicco turmeric vanishing cream are ayurvedic medicinal preparations and therefore not liable for excise duty under the Central Excises and Salt Act, 1944. After examining large amount of materials produced before the court it came to the conclusion that the two products are to be regarded as ayurvedic medicine, although they are used as tooth paste and cosmetic cream. It was further contended by the assessee that the special leave petition filed by the department against the above judgment before the Supreme Court was dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Food Specialities Ltd. [1991] 82 STC 298, and a decision of the High Court of Gujarat in State of Gujarat v. Pfizer Ltd. [1991] 82 STC 374. 6.. The learned counsel for the assessee submitted that this Court will not interfere in revision with the finding entered by the Tribunal that the relevant products of the assessee are ayurvedic medicines coming under entry 75 on the basis of voluminous materials produced by the assessee before the Tribunal. It was pointed out that apart from relying on certain decisions the Revenue had not produced any contra materials before the Tribunal in support of its contention that these products are known in the market as mere tooth paste and tooth powder that is as toilet preparation and not as ayurvedic medicine. The assessee is manufacturing these items under a licence for manufacture of ayurvedic drugs issued by the authorities under the Drugs and Cosmetic Act. It is further submitted that the very same question came up for consideration before the High Court of Karnataka in United Trading Agency v. Additional Commissioner of Commercial Taxes, Zone-II, Bangalore [1997] 104 ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the product as medicine once the tests are satisfied. Another decision relied on by the assessee is that of the High Court of Andhra Pradesh in State of Andhra Pradesh v. Koduri Satyanarayana Co. [1988] 68 STC 233, where assessee s contention was prickly heat powder was a drug and not a cosmetic as held by the sales tax authorities. The Tribunal upheld the contention taken by the assessee by applying utility test and also relying on letter of approval issued by the Government of India, Ministry of Petroleum and Chemicals regulating the prices of drugs where item No. 4 has been mentioned as prickly heat powder. In the revision by the Revenue the High Court of Andhra Pradesh upheld the view taken by the Tribunal and also observed that the Tribunal was justified in relying on the letter of approval by the Government of India, Ministry of Petroleum and Chemicals. It was therefore held that Johnson prickly heat powder would fall under entry 37 (drugs) and not under entry 36 of the First Schedule to the Andhra Pradesh General Sales Tax Act. 8.. After considering the materials supplied, contentions raised and decisions relied on by both sides, we are inclined to agree with the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r tooth powder can be treated as a drug coming under the Drugs and Cosmetics Act was not an issue. Therefore, by applying the test laid down by the Supreme Court in B.P.L. Pharmaceuticals Ltd. v. Collector of Central Excise, Vadodara [1997] 104 STC 164, we have no hesitation to come to the conclusion that the Tribunal was justified in classifying the product of the assessee under item 75. Then the only other question to be considered is whether a different view can be taken in the case of vicco vajradanti tooth paste and tooth powder, in the light of the specific entry under item 79, tooth powder and tooth paste. It is true that when there is a specific entry it shall be given preference to a general entry but that principle cannot be applied in the present case. Vicco vajradanti is also manufactured under an ayurvedic licence issued under the Drugs and Cosmetics Act. The Indian Standards Institution had also taken the view that vicco vajradanti is an ayurvedic medicinal preparation and not a cosmetic. The assessee had placed materials before the Tribunal that vicco vajradanti paste or powder are used as medicine for tooth decay, pyorrhoea, swollen gums, bleeding gums and periodont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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