TMI Blog2019 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Division Bench of this Court in the case of State of M.P. Vs. Vicco Products (Bombay) [ [2017 (5) TMI 376 - MADHYA PRADESH HIGH COURT] ] and therefore, this Court is of the opinion that the products manufactured by the applicant company as it falls in Schedule II Part III at Entry No.41 and 49, tax has to be levied at 12% as it does not fall under Schedule II Part IV at Entry 11, the duty is certainly not at all levied at 8%. Reference answered. - T.R. No.50/2018, T.R. No.51/2018, T.R. No.54/2018 - - - Dated:- 15-4-2019 - Shri Justice S.C. Sharma And Shri Justice Virender Singh JJ. For the Petitioner : Shri Amol Shrivastava, learned counsel For the Respondent/State : Shri Ritesh Kumar Gupta, learned counsel ORDER PER S.C. SHARMA, J. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of T.R. No.50/2018 are narrated hereunder. 02. Present tax reference has been received under Section 70 of the M.P. Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Part-III Schedule II or Entry No.41 of Part III Schedule II [scents, perfumes, hair tonics, hair creams, hail oils, hair shampoo, depilatories, face creams etc.]. 06. It was argued before this Court that the items manufactured by the applicant company are manufactured under the valid drugs license issued by the competent authority with proper compliance of the conditions of such license and the provisions of Drugs and Cosmetics Act and, therefore, they should be treated as products as drugs and medicines under the relevant entries. 07. The Division Bench of this Court in the case of State of Madhya Pradesh Vs. Vicco Products (Bombay) (W.A. No.102/2006) has dealt with similar issue. The judgment delivered by the Division Bench in paragraph Nos.2 to 21 reads as under:- 02. The learned Single Bench has relied upon an order passed by the Division Bench of this Court reported as (1998) 111 Sales Tax Cases 319 (Commissioner of Commercial Tax vs. Dawar Brothers) to hold that Vicco Vajradanti tooth paste and powder or Vicco Turmeric cream possess medicinal properties, therefore, fall under the category of medicines and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfumed hair oil, talcum powder, brushes, razors, razor blades, but including articles specified in Entry 21 of Part-II 12% Entry 16 Part-IV Schedule-II Drugs Medicines 3% 05. It is thus contended that the judgment of this Court in Dawar Brothers case is the judgment per incuriam rendered in ignorance of the statutory provision and thus, is not a binding precedent. It is the judgment in Dawar Brothers case which has been made basis to quash the notices for reassessment issued by the Assessing Officer. 06. On the other hand, Mr. Nair appearing for the petitioner argued that the writ petitioner had earlier filed a suit before the Civil Judge, Thane challenging the classification made by the Asst. Collector, Central Excise. The suit was decreed on 06.05.1982. The First Appeal No. 613 of 1982 was dismissed on 27.04.1988 by the Division Bench of Bombay High Court. It was held that the products manufactured by the writ petitioner are medicines and not cosmetics. The Court recorded the following finding:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in respect of the products in question. The matter again travelled to Supreme Court which was decided in a judgment reported as (2007) 13 SCC 270 (Union of India Anr. Vs. Vicco Laboratories. The Court held as under:- 32. Case of the respondent is that the classification of the said products having attained finality, pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show-cause notice on the ground on which it has been issued and it virtually amounts to reopening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the high Court in the respondent's case. 08. The issue before the Bombay High Court or before the Supreme Court was in respect of the entries for the purpose of levy of excise duty under the Tariff Heading 14 E of the First Schedule of the Central Excise and Tariff Act 1944 or the classification under the Central Excise Tariff Act, 1985 in respect of classification under Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factually incorrect. No doubt the drugs and medicines falling in Entry 16 Part-IV Schedule-II of the Act are not defined but cosmetics have been explained so as to include face cream and the toilet articles to include tooth paste and powder. Thus the statute itself have clarified the classification of the products manufactured by the writ petitioner as face cream and the tooth paste and tooth powder. There is no question as to whether it is an ayurvedic medicine or cosmetic cream. The entry is face cream such as turmeric cream manufactured by the writ petitioner. It would attract rate of taxes @ 16 per cent in terms of Entry 21 of Part II of Schedule II of the Act. The entries are clear and categorical that the face cream attracts rate of tax @ 16 per cent. It is not the case that the turmeric cream manufactured by the writ petitioner is not a face cream. Once a face cream manufactured by the writ petitioner falls in Entry 21 of Part II of Schedule II of the Act, it attracts rate of tax @ 16 per cent. Similarly, in respect of tooth paste or powder, the Entry 2 of Part III of Schedule II of the Act attract tax @ 12 per cent. Again, there is no classification on the basis whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions were legally wrong. 47 We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the court can ignore it. It is also true that the decision of this Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603, 623] was not regarding an order which had become conclusive inter parties. The court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties. 14. Another Constitution Bench in a judgment reported as Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court , (1990) 3 SCC 682, the Supreme Court held that the Latin expression per incuriam means through inadvertence. 15. In State of U.P. v. Synthetics and Chemicals Ltd. , (1991) 4 SCC 139 , the Court held that the Court is not bound by earlier decision if it was rendered without any argument, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deciding that issue. 17. In another judgment reported as State of Bihar v. Kalika Kuer , (2003) 5 SCC 448, the Supreme Court quoted from Halsbury's Laws of England (4th Edn.) Vol. 26 to hold that a decision is per incuriam which is given in ignorance of some inconsistent statute or binding authority. The Court held as under:- 5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders : Judicial Decisions as Authorities (pp. 297-98, para 578) we find it observed about per incuriam as follows: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow [ Young v. Bristol Aeroplane Co. Ltd. , 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson , 1947 KB 842 : (1947) 2 All ER 193.] ; or when it has acted in ignorance of a House of Lords decision, in which case it mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) 18. A Division Bench of this Court in a judgment reported as State of M.P. v. Shiv Shankar , (2000) 1 MP LJ 156 held that the doctrine of per incuriam only applies where another Division Bench of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the Court had this material, it must have reached a contrary decision. The Court held as under:- 49. It must be emphasised that the doctrine of per incurium only applies where another Division Bench of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the Court had this material, it must have reached a contrary decision. This is per incurium . This doctrine however cannot be extended to a case where if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion. 19. Since the Learned Counsel for the revenue erroneously conceded in Dawar Brothers s case that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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