TMI Blog2012 (2) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Nos. 1476, W.P. Nos. 1486 of 2009 - - - Dated:- 2-2-2012 - SUSHIL HARKAULI ACTG.C.J. AND TARUN KUMAR KAUSHAL, J. Sumit Nema with Mukesh Agrawal for the petitioner Vivek Agrawal, Government Advocate, for the respondents JUDGMENT We have heard learned counsel for the parties. In the erstwhile Madhya Pradesh Commercial Tax Act, 1994, the duties payable on various categories of item are prescribed in Schedule II. The relevant entries in question are entries 41 and 49 of Part III of Schedule II, these attract commercial tax at the rate of 12 per cent. The entries read as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Schedule II. This leaves us with the item called dermicool powder which is basically a powder to be used in cases of prickly heat. It is not disputed that the powder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ickly heat problem. In fact in the case of Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner, Central Excise, Nagpur reported in [2006] 145 STC 200 (SC), 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 in Muller Phipps (India) Ltd. v. Collector of Central Excise reported in [2004] 2 RC 885; [2004] 167 ELT 374 (SC) 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 of Manisha Pharma Plasto Pvt. Ltd. v. Union of India reported in [1999] 112 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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