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TMI Blog2006 (1) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2, Deputy Commissioner of Commercial Taxes, Corporate Division, imposing sales tax at 15 per cent on "Hajmola Candy" treating the said item as falling under entry No. 46 of Schedule IV of the West Bengal Sales Tax Act, 1994 (in short, "the 1994 Act "). The case of the petitioner, in brief, is that Hajmola Candy is an ayurvedic medicine. The petitioner manufactures Hajmola Candy after obtaining drug licence from the Drug Licensing Authority, Lucknow, and it is manufactured in accordance with the formula given in the authenticated ayurvedic text book "Bhav Prakash" and is certified by the Director, Ayurvedic and Unani Directorate, Lucknow, U.P. Hence, Hajmola Candy is to be treated as a drug and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cosmetics Act, 1940. The list of ingredients has been furnished at annexure "C" (page 23) of the application and the respondents have not questioned the correctness of the statement in this regard. Dr. Paul, learned Senior Counsel for the petitioner, has cited a decision of the Madhya Pradesh High Court reported in Panama Chemical Works v. Union of India [1992] 62 ELT 241, wherein it has been stated that "Swad" is an ayurvedic medicine and following the judgment, Special Bench of the CEGAT, New Delhi, held in a judgment reported in Dabur India Ltd. v. Collector of Central Excise [1994] 71 ELT 1069, that Hajmola Candy is an ayurvedic medicine under Chapter 30 of the Central Excise Tariff Act. In the said case, it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that it is not a medicament. In respect of Hajmola Candy too, Dr. Paul argues that merely because Hajmola Candy is sold across the counters and not under the doctor's prescription, it cannot be concluded that it is not an ayurvedic medicine and Hajmola Candy is also registered with the Drug Controller and is being manufactured under drug licence. Dr. Paul also argued that in the case of Himtaj Oil, too, the Supreme Court adopted the reasonings given in the case of "Banphool Oil" and held that "Himtaj Oil " is an ayurvedic medicine. Dr. Paul also referred to another decision of the Supreme Court reported in Meghdoot Gramodyog Sewa Sansthan v. Commissioner of Central Excise, Lucknow [2004] 174 ELT 14, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urgical dressings." According to the learned State Representative, the specific mention of "Surgical dressings" in entry 24 is a strong pointer to the legislative intent to use the expression "drugs and medicines" in the common parlance. If the expression was used to mean drugs and medicaments in the sense of Drugs and Cosmetics Act or in the sense in which entries under the Central Excise Tariff Act are made then it would include "surgical dressings" automatically and there is no necessity to include it specifically. The statute has not defined the term "drugs and medicines" and, therefore, whether Hajmola Candy falls within the expression "drugs and medicines" will not depend upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994 Act, a product is to be regarded as a drug or a medicine as understood in the common parlance. In a case reported in Dabur India Ltd. v. Commissioner of Central Excise [2005] 4 SCC 9; [2005] 5 RC 50, the Supreme Court has held that in classifying a product, the scientific and technical meaning is not to be resorted to. The product must be classifiable according to the popular meaning attached to it by those using the product. In the said case, the appellant-company had shown that all the ingredients in the product are those which are mentioned in ayurvedic text books. In addition, the appellant had also shown that they had a drug controller's licence for the product and they also produced the clinching evidence by way of prescript ..... X X X X Extracts X X X X X X X X Extracts X X X X
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