TMI Blog2020 (1) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of M/s. Balsara Hygiene Products Ltd. and observe that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948. As far as the third issue raised by the Applicant is concerned, i.e., that the order of the AAR was based on extraneous considerations, we observe that the appellant has failed to detail such alleged extraneous consideration, nor do we find anything in the impugned order which may give rise to such an inference. We, therefore, disregard this ground, apparently being an unsupported and vague charge. Classification of product Odomos? - HELD THAT:- Undoubtedly, the description under Heading No. 3808 91 '91, i.e., Repellants for insects such as flies, mosquito is far more specific as compared to the description under the other heading under consideration, i.e., Heading No. 3004 90 99 which is Other (meaning medicaments other than all those explicitly specified in the other sub-headings of Heading No. 3004). Evidently, the latter heading is a residual classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Tax Act, 2017 and Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act' and the UPGST Act', respectively) by M/s. Dabur India Ltd., Khasra Nos. 2834, 2835, 2836, Amka Road, Dhoom Manikpur, off NH-91, Dadri, Gautam Buddha Nagar, U.P.-203207 (hereinafter referred to as the Applicant ) against the Advance Ruling Order No. 25, dated 20-2-2019 by the Authority for Advance Ruling, Uttar Pradesh. At the outset, we would like to make it clear that the provisions of both the CGST Act and the UPGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the UPGST Act and vice versa. Brief facts of the case 1. M/s. Dabur India Ltd., Khasra Nos. 2834, 2835, 2836, Amka Road, Dhoom Manikpur, off NH-91, Dadri, Gautam Buddha Nagar, U.P.-203207 (hereinafter called the 'applicant') is a registered assessee under GST having GSTN : 09AAACD0474C1Z3. 2. The Applicant is a Private Limited Company, resident in India, and is engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mos as medicament. They also submitted that the said decision Allahabad High Court was upheld by Hon'ble Supreme Court vide decision dated 23-2-1987 in S.L.P. (Civil) No. 9950 of 1986. They also relied on 'Sujanil Chemo Industries v. CCE', reported in 2005 (181) E.L.T. 206 (S.C.) and 'CCE v. Wockhardt Life Science Ltd'., 2012 (277) E.L.T. 299 (S.C.). Therefore, they submitted that the product odomos is classifiable under sub-heading 3004 90 99 as medicament. Further, they assured to submit within two days literature regarding NNDB as drug. Further, through e-mail dated 17-7-2019, the applicant forwarded additional written submissions with a copy of literature showing the active ingredient DEET having been mentioned in US Pharmacopoeia and Indian pharmacopoeia, Allahabad High Court decision in the matter of 'M/s. Baidyanath Ayurved Bhawan (P) Ltd. v. CST' reported in 2004 NTN (Vol-24) 436, High Court Delhi decision in case of 'M/s. Mahinder Kumar Chaudhary v. Balsara Hygiene Products Ltd.' dated 19-12-2001 and copy of VAT invoices in State of Delhi on the subject product odomos showing as medicine only. Discussion and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court vide decision dated 23-2-1987. 13.2 We find that the instant case involves deciding the correct classification of the product from, inter alia, the two rival headings- one preferred by the Applicant, i.e., Heading No. 3004 90 99 (as 'other medicament for therapeutic or prophylactic uses and put up in forms or packings for retail sale') and the other, favoured by the Authority for Advance Ruling, i.e., Heading No. 3808 91 91 (as 'mosquito repellant', which itself is a sub-sub-heading under the sub-heading of 'insecticide' in the main heading). We have gone through the cited judgment of the Hon'ble High Court in the case of M/s. Balsara Hygiene Products Limited reported at 1986 UPTC 367 (All.) and observe that it was passed in the context as to whether the said product fell within the ambit of Entry No. 29 of Notification No.ST-II-5785/X-10(1)-80-U.P. Act XV /48-Order-81, dated 7-9-1981 issued under Section 3A of the U.P. Sales Tax Act, 1948. The description of the goods under the said entry reads as - Medicines and pharmaceutical preparations Including Insecticides and Pesticides (emphasis supplied). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading No. 3808 91 91, was in defiance of the cited judgment of the Hon'ble High Court and we do not find any infirmity in the said ruling of the AAR on this ground. 13.3 As far as the third issue raised by the Applicant is concerned, i.e., that the order of the AAR was based on extraneous considerations, we observe that the appellant has failed to detail such alleged extraneous consideration, nor do we find anything in the impugned order which may give rise to such an inference. We, therefore, disregard this ground, apparently being an unsupported and vague charge. 13.4 Now, we come to the final and all important issue of the correct classification of the appellants' product Odomos in terms of the Customs Tariff. We observe that the Applicant was clearing the same goods i.e. 'Odomos' as mosquito repellent under Chapter Heading 3808 before the advent of GST, i.e., under the Central Excise regime. Further, there is no change in the composition or intended usage of these goods after the introduction of GST and the packing thereof bears a clear declaration that the product therein is a mosquito repellent cream. Regarding the technical aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... website www.dabur.com, describes Odomos as a 'mosquito repellent'. No doubt, that characteristic of these goods, which aid in prevention of vector borne diseases by preventing mosquito bites, is also mentioned; however, it is a matter of common knowledge that public or market identity of the product is as a mosquito repellent. Here, it is pertinent to mention that mosquito bite, since time immemorial has been an irritant and source of discomfort to humankind and individuals want to safeguard themselves of the irritation and itchiness of a mosquito bite. This holds true for almost everybody anywhere on the planet, irrespective of whether the place/ locality they inhabit has prevalence of mosquito borne diseases or not. Moreover, even in the past, when the role of mosquitoes in spreading of certain diseases was not known, human kind has always endeavoured to prevent mosquito bites by using mosquito nets and paste or smoke of certain herbs and spices. All of the above to state the common truth that the primary motive of the common person, for using materials like the subject goods, is to save and protect themselves from mosquito bites even if there is no or negligible inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In this context, it is pertinent that mosquito repellents are classified at Heading No. 3808 91 91 of the Customs Tariff as a subcategory of insecticides. Thus, this again indicates that even by applying the yardstick of chemical composition, Heading No. 3808 91 91 is most specific for the classification of the subject product. 13.8 The Applicants have also stated that their product is not a mosquito repellant as, while such products achieve their desired result by nerve poisoning, stomach poisoning, asphyxiation or by odour, the subject product prevents mosquito bites by interfering with their olfactory receptors. Firstly, we observe that there is no authoritative literature which declares that mosquito repellents can work only in the above stated manner and any product preventing mosquito bites through any other method will not fall in the category of repellents. In fact, olfactory receptors are the odour perceiving receptors of mosquitoes and by interfering with their function, their ability to smell out the human body is impaired. Thus, the factor of odour is brought into play by the subject product, albeit indirectly. Furthermore, since, in the above manner, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
