TMI Blog2017 (5) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... the “medical equipments, devices and implants shall be specified to be the medical devices and implants” for the purpose of the said entry 28A of Schedule II to the Act. Fastrack brand sunglasses/ sunglasses cannot be said to be “medical device” merely because they are protectives; more particularly, considering the Legislative intend to supersede the earlier Notification dated 31st March 2006 by a new Notification dated 16th May 2008. It cannot be disputed, while interpreting an entry in the taxing statute, the legislative intend to play an important role, some meaning as to be given to the intention of the Legislature in superseding the earlier Notification dated 31st March 2006 and bring in the new Notification dated 18th May 2008. If the intention of the Legislature was to continue to consider spectacles and protectives as “medical equipments, devices and implants” for the purpose of Entry 28A of Schedule II of the Act, there was no necessity to supersede the Notification dated 31st March 2006 to come out with a new Notification dated 16th May 2008. Appeal allowed - decided in favor of Revenue. - TAX APPEAL No. 657 of 2013 With TAX APPEAL No. 826 of 2013 - - - Dated:- 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 22 of 2011 by which the learned Tribunal, relying upon its earlier decision rendered in First Appeal No. 20 of 2011 [which is subject matter of Tax Appeal No. 657 of 2013 before this Court] has allowed the said Appeal preferred by the respondent herein-original appellant-Dealer and has held that the protective sunglasses fall under Entry 87 of Schedule-II to the VAT Act, the appellant-State of Gujarat has preferred Tax Appeal No. 826 of 2013 praying to quash and set-aside the Order dated 18 th October 2011 passed by the Joint Commissioner of Commercial Tax [Legal], Gujarat State, Ahmedabad the Determining Authority, whereby, the Determining Authority held that the protective sunglasses fall under Entry 87 of Schedule II to the VAT Act and has held that the Fastrack brand sunglasses are medical devices and fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006. The learned Tribunal has also held that the Fastrack Sunglasses also fall under Notification dated 1st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law: [A] Whether in the light of the above fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006/1st May 2008. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal in holding that the Fastrack brand Sunglasses as medical devices and consequently fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notifications dated 31st March 2006/1 st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law : [A] Whether in the light of the above facts and circumstances of the case, the Hon'ble Tribunal had rightly interpreted Entry 28A (ii) to Schedule II of the Gujarat Value Added Tax Act, 2003 ? [B] Whether on the facts and circumstances of the case, the Hon'ble Tribunal had rightly hold that the Sunglasses are medical devices ? 5. Shri Hardik Vora, learned AGP has appeared on behalf of the appellant-State. Learned advocate Shri Tanvish Bhatt has appeared on behalf of the respondent-Dealer in Tax Appeal No. 657 of 2013 and Shri R.V Desai, learned advocate has appeared on behalf of the respondent-Dealer in Tax Appeal No. 826 of 2013. 5.1 Shri Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Act. 5.5 Shri Vora, learned AGP has heavily relied upon [i] medical equipment; [ii] medical device and [iii] medical implants. It is submitted that relying upon definition of medical device , the product Fastrack sunglasses cannot be said to be medical device as sought to be contended on behalf of the respective Dealers, and even as held by the learned Tribunal. It is further submitted by Shri Hardik Vora, learned AGP that even otherwise, the learned Tribunal has not properly appreciated the change in the Notifications dated 31st March 2006 and 1st May 2008. It is further submitted by learned AGP Shri Vora that even subsequently, the Notification dated 16th May 2008 came to be further amended by Notification dated 4th October 2013 whereby it is clarified that all types of medical equipment, devices and implants excluding the goggles, spectacles of sun-glass and sun-glass which are not correctives only shall fall in Entry 28A (ii) of Schedule II to the VAT Act. It is submitted that the Notification dated 4th October 2013 can be said to be clarificatory notification. It is submitted that therefore, even as per subsequently amended Notification dated 4th October 2013, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, correctives and protectives will fall in Entry 28 of Schedule II to the VAT Act. It is submitted that therefore, when the sunglasses are protectives, the same are required to be considered as medical device as per the Notification dated 31st March 2006, and therefore, shall fall in Entry 28A (ii) of Schedule II to the VAT Act. 7.2 Shri Tanvish Bhatt, learned counsel appearing on behalf of the respondent-Dealer has taken us through the relevant materials to show and demonstrate that the sunglasses are protectives and are used to protect the eyes from ultraviolet rays and to prevent damage to the eyes. It is submitted that therefore, when the sunglasses are protectives, and therefore, they are rightly held to be medical devices and therefore, rightly held to be falling in Entry 28A of Schedule II to the VAT Act. 7.3 Learned advocate Shri Bhatt appearing on behalf of the Dealer has placed reliance upon a decision of Supreme Court in the case of Ponds India Limited [Merged with HL Limited] vs. Commissioner of Trade Tax, Lucknow, reported in (2008) 8 SCC 369; particularly paragraphs 35, 44 45 thereof, in support of his submissions that as held by the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Government Notification dated 16 th may 2008 read as under : NOTIFICATION FINANCE DEPARTMENT SACHIVALAYA, GANDHINAGAR DATED the 31st March, 2008 No. (GHN-32) VAT-2006/SCH-H(28A) (d)-TH- In exercise of the powers conferred by sub entry (ii) of entry 28A of Schedule II to the Gujarat Value Added Tax Act, 2003 (Guj. 1 of 2005), the Government of Gujarat hereby specifies the items mentioned in the Schedule appended hereto, as 'Medical equipments, devices and implants' for the purpose of the said entry 28A. SCHEDULE Sr.No. Description of Central Excise Head No. Sub heading No. Tariff item No. 1 2 3 4 5 1 Contact lenses - - 9001 30 00 2 Spectacle lenses of glass 9001 40 3 Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters 19 L.V. Cannulae 20 Eone Cements 21 Scalp Vein Set 22 Internal Prosthetic Replacements 23 Paris (not specified or included elsewhere in this Schedule) of goods mentioned in this Schedule. 9033 00 00 Explanation : For the purposes of this notification: (1) The rules for the interpretation of the provisions of the Central Excise Tariff Act, 1985 read with Explanatory Notes as updated from time to time, published by the Customs Co-operation Council, Brussels, apply for the interpretation. (2) Where any commodities are described against any heading or sub heading or as the case may be, tariff item, and the aforesaid description is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd implants for the purpose of Entry 28A of the VAT Act, includes Spectacles, Correctives and Protectives . However, thereafter, Government Notification dated 31st March 2006 came to be superseded by subsequent Government Notification dated 16th May 2008, in supersession of the Notification dated 31st March 2006, the Government specified all types of medical equipments, devices and implants for the purpose of all the said entry 28A of Schedule II to the Act. Therefore, Spectacles, Correctives and Protectives came to be deleted and only those medical equipments, devices and implants are specified to the medical equipments, devices and implants to be the Medical equipments, devices and implants for the purpose of the said Entry 28A of Schedule II to the Act. And therefore, use of spectacles, correctives and/or protectives would loose its significance. 14. From the schedule mentioned in the Notificationdated 31st March 2006, it appears that all other items; except spectacles, correctives and protectives all other items can be said to be either medical equipments, medical devices or medical implants. However, with a view to remove doubt and to take away spectacles, corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used specifically for diagnostic and/or therapeutic purposes and necessary for its proper application intended by the manufacturer to be used for human beings for the purpose of : [a] Diagnosis, prevention, monitoring, treatment, or alleviation of disease; [b] Diagnosis, monitoring, treatment, alleviation or compensation for an injury or handicap; [c] Investigation, replacement, or modification of the anatomy or of a physiological process. 15.1 Under the circumstances, Fastrack brand sunglasses/ sunglasses cannot be said to be medical device merely because they are protectives; more particularly, considering the Legislative intend to supersede the earlier Notification dated 31st March 2006 by a new Notification dated 16th May 2008. It cannot be disputed, while interpreting an entry in the taxing statute, the legislative intend to play an important role, some meaning as to be given to the intention of the Legislature in superseding the earlier Notification dated 31st March 2006 and bring in the new Notification dated 18th May 2008. If the intention of the Legislature was to continue to consider spectacles and protectives as medical equipments, devices and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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