TMI Blog2021 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... s used as an alternative to soap, it can't be said to have a prophylactic use in COVID Infection as the impugned produce is not specific to COVID-19 infection. The same cannot be compared with Polio drops or covaxin, wherein the Polio drops have a prophylactic use in preventing Polio myelitis disease or covaxin helps in preventing COVID -19 infection. In the instant case, the impugned product is not specific to any disease. Hence the goods in question cannot be covered under HSN 3004. The impugned goods are covered under heading 3808, which in turn is covered under entry no. 87 of Schedule III of Notification No.01/2017 - Central Tax (Rate) dated 28.06.2017 and hence are taxable at the rate of 9% under the CGST Act. Similarly, the goods are taxable at the rate of 9% under the KGST Act. - KAR ADRG 08/2021 - - - Dated:- 26-2-2021 - DR. RAVI PRASAD M.P. AND SRI. MASHHOOD UR REHMAN FAROOQUI, MEMBER Represented by : Sri Rishab, Advocate Authorised Representative ORDER UNDER SECTION 98(4) OF THE CGST ACT, 2017 UNDER 98(4) OF THE KGST ACT, 2017 M/s. Wipro Enterprises Private Limited, Consumer Care Lighting Division, SJP1, 'C' Block, Sarjapur Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. The applicant submits that in the case of Sujanil Chemo Industries v. Commissioner of C. Ex., Cus., Pune = 1999 (7) TMI 239 - CEGAT, NEW DELHI , wherein the Court has held that an hair oil used for killing lice would be considered to be prophylactic use as it prevents disease which will follow from infestation of lice. h. The applicant submits that in the case of Commissioner of Central Excise v. Wockhardt Life Sciences Ltd = 2012 (3) TMI 40 - SUPREME COURT , the Court was deciding the classification of Povidone Iodine Cleansing Solution USP and Wokadine Surgical Scrub, which are used as antiseptic or disinfectant solution. The Court in this case held that the product is used for preventing disease and hence the same has prophylactic use qualifying as medicament. i. The Applicant submits that in the case of Commissioner of C. Ex., Mumbai-I v. Ciens Laboratories, Mumbai = 2013 (8) TMI 467 - SUPREME COURT , the Apex Court held that there were 3 main tests which were to applied for determining if any product qualifies as medicament, viz. Firstly, when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the application. 5. FINDINGS DISCUSSION: 5.1 At the outset we would like to make it clear that the provisions of CGST Act 2017 and KGST Act 2017 are in pari materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the KGST Act. 5.2 We have considered the submissions made by the applicant in their application for advance ruling as well as the submissions made by Sri. Rishab J, Advocate Authorized Representative of the applicant during the personal hearing. We also considered the issues involved, on which advance rulings are sought by the applicant, relevant facts the applicant's interpretation of law. 5.3 On examination of the nature of the activity carried out by the applicant it is observed that the applicant is engaged in the manufacture of toilet soaps, LED bulbs and fittings, other toiletries, and other consumer products and also manufacturing marketing Hand Sanitizer at a large scale at their various factories pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n't be said to have a prophylactic use in COVID Infection as the impugned produce is not specific to COVID-19 infection. The same cannot be compared with Polio drops or covaxin, wherein the Polio drops have a prophylactic use in preventing Polio myelitis disease or covaxin helps in preventing COVID -19 infection. In the instant case, the impugned product is not specific to any disease. Hence the goods in question cannot be covered under HSN 3004. 6.3. Further, as per explanatory notes to HSN of WCO, Heading 3004 is given as under: This heading covers medicaments consisting of mixed or unmixed products, provided they are: (a) Put up in measured doses or in forms such as tablets, ampoules (for example, re-distilled water, in ampoules of 1.25 to 10 cm3, for use either for the direct treatment of certain diseases, e.g., alcoholism, diabetic coma or as a solvent for the preparation of injectible medicinal solutions). capsules. cachets, drops or pastilles, medicaments in the form of transdermal administration systems, or small quantities of powder, ready for taking as single doses for therapeutic or prophylactic use. The heading also includes measured doses in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other microorganisms that can cause infection and disease. Further as per the common parlance also, the Alcohol based hand sanitizers are never classified as Medicaments. 8.1 The applicant has taken support of the Sujanil Chemo Industries v. Commissioner of C. Ex., Cus., Pune = 1999 (7) TMI 239 - CEGAT, NEW DELHI ., Pune and the product in question in the said case was a anti-lice agent. The same was ordered to be classified under Heading 3003. But alcohol based hand sanitizers do not act against any particular organism and hence the argument of the applicant cannot be considered favourably. 8.2 Further, the applicant has taken the support of the judgement of the Hon'ble Supreme Court in the case of Commissioner of C. Ex., Mumbai-I v. Ciens Laboratories, Mumbai = 2013 (8) TMI 467 - SUPREME COURT , Mumbai to claim that the impugned goods are classifiable as medicaments. In fact the said case law goes against them as the Apex Court had ruled that if a product's primary function is care and not cure then it is not a medicament. In the instant case, sanitizers are primarily used for care rather than cure for COVID-19. 8.3 The applicant, further, has taken t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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