TMI Blog2019 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... e of STATE OF M.P. VERSUS VICCO PRODUCTS (BOMBAY) [ 2017 (5) TMI 376 - MADHYA PRADESH HIGH COURT] ] has held that The classification of a product under a statute cannot be read into another statute. Each statute has to be interpreted on the basis of the provisions contained therein. Therefore, classification of the products in the said judgments dealing with the Central Excise Laws are not relevant for examining the classification of the products under the local Act, which have specifically included face cream under the Entry of Cosmetics and tooth paste and tooth powder under the Entry of Toilet articles. When the entries under the schedule in respect of payment of tax under the Madhya Pradesh Commercial Tax Act, 1994 are very clear, there is no ambiguity, the classification of product under the Madhya Pradesh Commercial Tax Act, 1994 has to be looked into and the classification of the product under the different statutes cannot be looked into as argued before this Court. The Madhya Pradesh Commercial Tax Appellate Board was justified in upholding the classification of the specified goods manufactured by Emami under Entry No.47 from 01/01/2000 to 14/03/2000 / Entry No.41/4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) 41. Scents, perfumes, hair tonics, hair creams, hair oils, hair shampoo, depilatories, face creams, snows, lipstics, rougue, nail polish and other cosmetics including medicinal preparation thereof. 12 49. Tooth paste, tooth powder, hair oils, face powder, talcum powder, [toilet soap, washing soap] and other toilet articles including medicinal preparations thereof, combs, brushes, razors and razor blades. 12 SCHEDULE II PART IV Sl. No. Description of goods Total rate of tax (1) (2) (3) 11. Drugs and medicines excluding those specified elsewhere in this Schedule. (Life Saving Drugs exempted from Tax during 1-4-2001 to 31-3-2004 by Notification No.16, dated 27-3-2001) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are being manufactured by the Emami and the composition of the items. Reliance has also been placed upon other material including levy of other taxes upon the items manufactured by the respondent Emami Limited and it has been argued that the items manufactured by the Emami are Ayurvedic Drugs / Drugs and it falls under the heading of drugs and medicines. 08-He has placed reliance upon a judgment delivered by the Division Bench of this Court in the case of Vicco Products (Supra) and has also placed reliance upon a judgment delivered by this Court in the case of M/s. Popular Sales Vs. The State of Madhya Pradesh (Writ Petition No.1486/2009, decided on 02nd February, 2012) and his contention is that Division Bench of this Court in the case of Dermicool Power and Itch Guard Cream has held that its a drug / medicine and the writ appeal of M/s. Popular Sales has been allowed. 09-This Court has carefully gone through the aforesaid judgment and in the aforesaid case, the State has conceded that Itch Guard Cream is used only for treatment of certain medical conditions and it cannot be used otherwise, merely for cosmetics purposes and in those circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis whether it is a medicine or a cosmetic. The tooth paste or tooth powder, whether it is a medicine or a cosmetic will attract tax @ 12 per cent i.e. the classification specified in the Act itself. 12.The argument that the product manufactured by the petitioner are required to be given trade meaning and treated as such, is factually incorrect. Such situation would require examination, if the Statue is silent. In the event, the Statue contemplate particular rate of Tax in respect of a product, which does not admit any debate, then rate of tax applicable will be as specified in the Statute alone. Since the statutory provisions were not brought to the notice of the Court, the judgment of this Court in Dawar Brothers case is a judgment per incuriam. 13. The question as to when a judgment can be said to be per incuriam has been interpreted by the Supreme Court time and again. The Constitution Bench in a judgment reported as A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 held as under: 42. It appears that when this Court gave the aforesaid directions on 16-2-1984, for the disposal of the case against the appellant by the High Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule and without any citation of the authority. The Court held as under:- 40. Incuria literally means carelessness . In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority . (Young v. Bristol Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER 293] ). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey [(1962) 2 SCR 558 : AIR 1962 SC 83] this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing statutory force [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. see also Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675 : (1941) 2 All ER 11. For a Divisional Court decision disregarded by that court as being per incuriam, see Nicholas v. Penny, (1950) 2 KB 466 : (1950) 2 All ER 89.]. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties [Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA)], or because the court had not the benefit of the best argument [Bryers v. Canadian Pacific Steamships Ltd., (1957) 1 QB 134 : (1956) 3 All ER 560 (CA) Per Singleton, L.J., affirmed in Canadian Pacific Steamships Ltd. v. Bryers1958 AC 485 : (1957) 3 All ER 572.] , and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority [A. and J. Mucklow Ltd. v. IRC, 1954 Ch 615 : (1954) 2 All ER 508 (CA), Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA), see also Bonsor v. Musicians' Union, 1954 Ch 479 : (1954) 1 All ER 822 (CA), where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. The judgments of Supreme Court in M/s Vicco Laboratories case deals with classification of the provisions under the Central Excise Tariff Act, 1985. The classification of a product under a statute cannot be read into another statute. Each statute has to be interpreted on the basis of the provisions contained therein. Therefore, classification of the products in the said judgments dealing with the Central Excise Laws are not relevant for examining the classification of the products under the local Act, which have specifically included face cream under the Entry of Cosmetics and tooth paste and tooth powder under the Entry of Toilet articles. 21. In view thereof, we find that the order passed by the learned Single Bench cannot be sustained. It deserves to be set aside and is ordered to be set aside and the writ petition is dismissed. Consequently, the Department shall proceed with the decision on the show cause notice in accordance with the law. In light of the aforesaid judgment, in the considered opinion of this Court when the entries under the schedule in respect of payment of tax under the Madhya Pradesh Commercial Tax Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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