TMI Blog2001 (10) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959 as ultra vires articles 14, 19(1)(g) and 300A of the Constitution of India. That explanation as also the impugned part in entry 20 were introduced into the Act with effect from March 12, 1993. 2.. The second petitioner is a manufacturer of two well-known consumer products "Vicco vajradanti" tooth paste, and "Vicco turmeric" face cream, first petitioner being one of its dealers. It is the case of the second petitioner that these products are ayurvedic products and are ayurvedic drugs properly classifiable under serial No. 20 of Part C of the First Schedule to the Act which reads thus: "Part C. Entry 20 (A) Medicines conforming to the following description: Any medicinal formulation or preparation ready for use internally or externally for treatment or mitigation or prevention of diseases or disorders in human being or animals (excluding products capable of being used as creams, hair oils, tooth-pastes, toothpowders, cosmetics, toilet articles, soaps and shampoos), but including- (i) Allopathic medicine (ii) Other medicines and drugs including ayurvedic, homeopathic, siddha and unani preparations. (iii) Medicinal mixtures or compounds, the components of which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eams, all purpose creams, cold creams, cleaning creams, make-up creams, beauty creams, beauty milk, cleaning milk, hair foods, skin tonics, complexion rough, nail cutters, sanitary towels and napkins, astringent lotions, pre-shave and after-shave lotions and creams, moisturisers of all sorts and personal (body deodorants). Explanation.-Any of the items listed above even if medicated or as defined in section 3 of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940) or manufactured on the licence issued under the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940) will fall under this entry. " 5.. It is not in dispute that the second petitioner has obtained a drug licence under the Drugs and Cosmetics Act for both these products; that it has not obtained a licence for the manufacture of any cosmetic; that the ingredients used in these products are those prescribed by the texts in Ayurveda; and that these products have medicinal value. 6.. The ingredients of "Vicco vajradanti" toothpaste are set out on the carton in which it is sold, thus: "Babhul 90 mg., Jambhul 50 mg., Lavang 3 mg., Manjistha 130 mg., Dalchini 8 mg., Bor 50 mg., Vajradanti 25 mg., Acrod 3 mg., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The language of the entry and its true scope will determine the includibility or otherwise of the taxable goods in such entry. The decisions to which petitioner has referred, therefore, do not conclusively establish that these two items are not capable of being subjected to tax as tooth paste and skin cream under the provisions of the Tamil Nadu General Sales Tax Act, 1959. It is, therefore, necessary to examine the petitioner's claim with reference to the language employed in those entries. The relevant entries in the Schedule to the Act have already been set out. 13.. The validity of the explanation to entry 1 in Part F of the First Schedule has been challenged by the assessee on the ground that it is violative of article 14 of the Constitution. It was submitted that medicines having been separately classified under entry 20, in Part C of the First Schedule, it was discriminatory to exclude some of the items falling within that class separately and subject them to a higher rate of tax. Counsel in this context relied on the judgment of the Supreme Court in the case of Arya Vaidya Pharmacy v. State of Tamil Nadu [1989] 73 STC 346, wherein the court considered the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class of medicinal preparations, as compared to other medicinal preparations and therefore the classification was based on intelligible differentia, and thus valid. The apex Court also pointed out that in the case of Arya Vaidya Pharmacy [1989] 73 STC 346, while all other patent or proprietory medicinal preparations belonging to different systems of medicines were taxed at 7 per cent only without any classification, arishtams and asavas prepared under the ayurvedic system alone were made subject to 30 per cent levy and that at the relevant point of time there were over 130 allopathic medicines containing alcohol which were potable, as against only three ayurvedic medicines out of which arishtams and asavas were alone subject to 30 per cent tax. 16.. The classification brought about by the explanation to item 1 in Part F of the First Schedule impugned in this petition is based on the dominant purpose for which the product is used. This classification does not discriminate against any system of medicine or against any of the licences. All of them are treated alike. 17.. There is no hostile discrimination against ayurvedic medicines or any medicine by reason of this explanation. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was delivered on February 20, 1968. It is not the case of the assessee that the composition of the Vajradanti powder or paste made by it has undergone any drastic change since then, or that the powder or paste is not meant for use for cleaning one's teeth. It is also not it's case that the tooth paste sold also with the name Vajradanti is meant for anything other than brushing one's teeth and that such tooth paste is not a toilet article. 21.. It is thus evident that the primary purpose for which the product Vicco vajradanti in the form of paste as also Vicco vajradanti in the form of powder are used, is for the purpose of cleaning one's teeth-an act which is required to be performed every day--if not several times, at least once in a day by everyone. It is to that market that the assessee seeks to cater by promoting the sale of these products for the purpose of use as tooth paste, and as a tooth powder. Vicco turmeric is marketed as a face cream and as a skin care product. It is meant for use daily by those who wish to preserve the smooth texture of their skin on their face. The market targeted comprises mostly of women more particularly adolescent girls and young women. 22.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco turmeric face cream as well. That cream is marketed in a package which shows the face of a young lady and it is meant to cater to those concerned with beautification and maintaining a soft skin. The preventive properties of the cream are also displayed on the carton. Face cream is an item mentioned in entry No. 1 of Part F. 26.. Learned counsel for the petitioners, however, contends that once a product is classified as a drug and the character of the product is not changed, it cannot be deprived of the classification that had been given to it earlier as a medicine or drug. Reliance in this context was placed on the case of B.P.L. Pharmaceuticals Ltd. v. Collector of Central Excise, Vadodara [1997] 104 STC 164 (SC). The matter concerned a shampoo "Selsun" and its classification under the Central Excise Act. That product contained selenium sulfide lotion U.S.P. containing 2.5 per cent of selenium sulfide w/v. It was not disputed in that case that, that product is prescribed by physicians for treatment of skin diseases commonly known as "dandruff", and "tinea versicolour" which is caused by an organism known as "pytryriasis versicolour". It was also noticed that, that product wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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