TMI Blog2006 (10) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... being not classified elsewhere liable to tax as an unclassified item at the rate of eight per cent. First appellate authority accepted the claim of the applicant and held that it is liable to tax under the aforesaid notifications under the entry goods for indoor and outdoor games or sports . The Commissioner of Trade Tax filed appeal against the order of the first appellate authority, which has been allowed by the impugned order. The Tribunal has set aside the order of the first appellate authority and restored the order of the assessing authority. The Tribunal held that fit kit exerciser in common parlance is not known as goods for games or sports. The Tribunal held that it is an item used for body exercise to maintain the fitness of the body and does not provide any enjoyment or amusement or any kind of recreation. The Tribunal also held that it is used for self-bodily exercise in which there is no involvement of contest or competition. The Tribunal held that by subsequent Notification No. KA. NI2-3368/XI-9 (231)/94-U.P. Act-15-48-Order-2000 (40), dated October 25, 2000 physical exercise, fitness equipment has been included under the entry goods for indoor or outdoor games o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require consideration: Notification No. ST-2-1097/XI-2 (3)-88-U.P. Act-XV/48-Order-91, dated July 29, 1991. 21. Goods for indoor or outdoor games or sports, except those included in any other notification issued under the Act but including rubber bladders of various kinds of balls, toys, swing, jhoola, medals, cups, trophies, badges and whistles. M or I 3 per cent Notification No. TT-2-3403/XI-9(116)/94-U.P. Act-15/48-Order-94, dated October 1, 1994: 21. Goods for indoor or outdoor games or sports, except those included in any other notification issued under the Act but including rubber bladders of various kinds of balls, toys, swing, jhoola, medals, cups, trophies, badges and whistles. M or I 2 per cent Notification No. KA. NI-2-3368/XI-9(231)/94-U.P. Act-15-48-Order-2000(40), dated October 25, 2000. 19. Goods for indoor or outdoor games or sports except those included in any other notification issued under the Act but including rubber, bladders of various kinds of balls, toys, swings, jhoola, medals, cups, trophies, badges, whistles, gut (string), rackets, grips for rackets, bats, ball kits (rubber, synthetic, foam), cricket helmet and face grill, safety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cises, a mechanical apparatus for exercising. Perusal of the aforesaid dictionary meaning shows that exerciser is a device in which there is involvement of the physical exercise for the sake of bodily health training or practise to develop skill aptitude, mental or spiritual powers. It has not been considered as device to provide any enjoyment or recreation or fun or any kind of amusement or involve any contest or competition while in a sports, there is a concept of recreation, enjoyment and fun and in a game there should be contest or competition. The applicant has not led any evidence to show that fit kit exerciser in common parlance and in commercial sense is known as goods for game or sport. The Tribunal being a fact-finding authority recorded the finding that in common parlance and in commercial sense, it is not known as goods for game or sport. Contrary to the said finding, no material has been placed before this court. The apex court in various decisions held that for the classification of the goods, it has to be considered as to how a commodity is known in common parlance and in commercial sense. The honourable Supreme court in the case of Ramavatar Budhaipras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Collector of Central Excise reported in [1991] 51 ELT 502, the apex court held that lal dant manjan which is being used for cleaning teeth only, is not a drug or ayurvedic medicine. The relevant portion is quoted below: Cleaning teeth being an act of daily toilet, dentifrices produced in the form of tooth powder used for cleaning teeth would be an article of toilet as held by the Bombay High Court in the case of Commissioner of Sales Tax v. Vicco Laboratories [1968] 22 STC 169. Madras High Court in the case of V.P. Somasundra Mudaliar v. State of Madras [1963] 14 STC 943 also took the view that the tooth powder is a 'toilet' requisite. The honourable Supreme Court in the case of Sarin Chemicals Laboratories v. Commissioner of Sales Tax [1970] 26 STC 339; AIR 1971 SC 65 also held that tooth powder in common parlance is considered as a toilet article. In this judgment, Supreme Court referred to the decisions of Allahabad, Bombay and Madras High Courts mentioned above and confirmed the view taken by those High Courts that the tooth powder is a 'toilet requisite'. In the case of BPL Pharmaceuticals Ltd. v. Collector of Central Excise reported in [1997] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Balsara Hygiene Products Ltd. reported in [1986] UPTC 367, Odomos has been held as a medicine. This court held: ...There cannot be dispute about the fact that Odomos is used only as mosquitoes repellent. The purpose is to save the human skin from mosquitoes which results in several infectious disease and mostly malarial fever, etc. It is true that it is not used as a medicine to cure some disease or to heal up some wound but it is certainly a preventive medicine which prevents the body from being infected by the bite of the mosquitoes. One redeeming feature which has also been mentioned by the Tribunal in its order is that manufacturing of this commodity is controlled by the authorities under the Drug and Cosmetics Act, 1940, which also lends support to the contention of the respondent-assessee that it is used like a medicine. It has been contended by the department that Odomos is available even in general stores merchandise shops and is not sold at the chemist shop exclusively. In my opinion the mere fact that Odomos is available even in general merchandise shops will not detract the substance from being used as a preventive measure or as a preventive medicine. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1998] 111 STC 425 (All); [1998] UPTC 1086 are distinguishable and are not applicable to the present case. The argument of the learned counsel for the applicant that under heading 9506 of Central Excise Tariff both article and equipment for general and physical exercise and sports and outdoor games have been classified together and excisable and subject to excise duty at the rate of 3 per cent and, therefore, fit kit exerciser should be treated as a sport goods or goods for game has no substance. The Parliament in its own wisdom can classify any goods in any manner, on the consideration of their own viewpoint. Merely because under the tariff heading 9506, both article and equipment for general and physical exercise and sport goods and outdoor game are classified together, it does not mean that article and equipment for general and physical exercise are sport goods or goods for outdoor games. The argument of the learned counsel for the applicant goes against the applicant. Entry of the tariff item No. 9506 shows, article and equipment for general and physical exercise. Sport goods and outdoor games as separate items and not one item. For the reasons stated above, I am of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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