TMI Blog2020 (10) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... OTHAM CARE LTD. [ 2015 (8) TMI 250 - SUPREME COURT] has held that suggestion that shampoo should be used once a week and on other days, normal shampoos may be used, showed it was to be used like medicine, unlike other normal Shampoos. It was more so as it was not used for cleaning hair. Hence, shampoo was classifiable as medicine under sub-heading 3003.10 of Central Excise Tariff and not under sub-heading 3305.99 ibid as preparation for use on hair'. Even sanitizers are manufactured based on formulations Ethanol 70% (v/v) or Isopropyl alcohol 75% (v/v), Chlorhexidine Gluconate Solutuion Ip 2.5% v/v and Sanitizers can aid in the prevention of the human ailment in the form of COVID-19 disease; it does not qualify as medicaments because for the goods in question to be treated as medicament , it should cure or prevent a specific ailment. Goods which are meant for general hygiene or well-being of a person which may incidentally lead to the prevention of a host of illnesses or ailments cannot be considered as a medicament. It is for this reason that goods like soaps, ordinary shampoos, etc. are not treated as medicaments. The World Customs Organization has also classified the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iseptic solution/Topical Antiseptic hand sanitiser cannot be used for general maintenance of skin (6) The label of the product also contains following information ■ Easy to use Hand rub effective against bacteria including tubercule bacillus, fungi, Viruses incl HBV and HIV virus ■ Superior antimicrobial action with excellent skin compatibility and emollience (7) The directions for use as described on label are as under Use Undiluted ■ (A) For Rapid Hand Antisepsis : Dispense Sufficient solution to moisten hands and finger nails rub vigorously over all surfaces for 30 seconds ■ (B) For Skin Antisepsis : Dispense sufficient solution in hands and rub on hands and forearms for 1.5 to 3 minutes giving particular attention to fingertips and areas around the nails (8) The precautions and contradiction as mentioned on label are as under o Precautions /Contradictions Avoid direct contact with eyes Keep out of reach of children Contraindicated in case of known hypersensitivity to Chlorhexidine Do not mix with detergent or other chemicals Do not use with water or towel (9) Chlorhexidine Gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thoroughly wash and clean the surgical site to remove gross contamination before performing antiseptic skin preparation. Use an appropriate chlorhexidine-alcohol based antiseptic agent for skin preparation. Apply preoperative antiseptic skin preparation in concentric circles moving toward the periphery. The prepared area must be large enough to extend the incision or create new incisions or drain sites, if necessary. (10) Topical Antiseptic Solution/Hand Sanitisers therefore have following uses a. Doctors/ health workers for presurgical antiseptic/anti microbial cleaning/hand antisepsis, b. Antiseptic cleaning of patients skin/skin antisepsis before surgery/catheter insertion c. Antiseptic/ anti microbial cleaning/hand antisepsis by Doctors/health workers before/after treating patients of infectious disease. d. Patients/ general public also uses the product for anti septic cleaning of hands /skin before or during wounds dressing/post operative care. People may also use the product for antiseptic hand cleaning /hand antisepsis with an intention of disease causing micro organism. 5. The applicant have submitted statement containing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substances like insecticides, fungicides, pesticides etc which are not regarded as fit for direct application on human body . Reliance is placed on decision of CEGAT in case of Bengal chemicals and Pharamceuticals (P ltd 1991 (53) ELT 140 . There is no dispute that phenol is a disinfectant. We have held earlier in the appellant's own case reported in 1990 (48) E.L.T. 436 that phenol does not fulfil the function of prevention of disease in human beings or animals and serves only a sanitation purpose. Disinfection has been defined as the killing of disease causing (pathogenic) agents by direct application of chemical or physical methods and disinfectants are agents such as creosote or alcohol, applied to inanimate objects to kill micro-organisms. It does not have prophylactic uses of prevention of disease so to come within the meaning of prophylactic contained in Stedman 's Medical Dictionary. It is therefore not a medicament under Note 2(i)(a) of Chapter 30. (6) Relevant part of Explanatory Notes to the Heading 3004 is reproduced below This heading covers medicaments consisting of mixed or unmixed products, provided they are : (a) (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... septic agent along with alcohol leads to superior antimicrobial action and is therefore recommended by various authorities for use by Doctors, health workers in operation theatres / ICU and various health settings for pre and post operative care . (11) In light of above facts and submission and judicial decision Topical Antiseptic Solution/Topical antiseptic Hand sanitiser Supplied by the applicant merits classification under Hs code 3004 90 87 . Accordingly supply of the same is covered by Serial number 63 of schedule II of Notification number 01/2017 -Central Tax Rate dated 28-06-2017. 6. The application for advance ruling was forwarded to the Jurisdictional GST Officer to offer their comments/views/verification report on the matter. The Additional Commissioner, Grade-1, Commercial Tax, Kanpur Zone-Second, Kanpur vide his letter dated 26.08.2020 has opined that- 1.- Hand Sanetiser is used for disinfecting/sanitising hand and HSN code of Disinfectants has been specified as 38089400 under Notification No. 01/2017-Central Tax dated 28.06.2017. As such, HSN code of Hand Saitiser falling in the category of Disinfectant is 38089400. 2.- Topical Antiseptic solution/T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017-Central Tax (Rate) dated 28-Jun-2017 has been issued to notify the rates. Entry No. 87 of Schedule III of the said notification which stipulates the rate of 18% reads as under: S.No Chapter/Heading/Sub-Heading/Tariff Item Description of Goods 87 3808 Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products Entry No. 63 of Schedule II of the said notification which stipulates the rate of 12% reads as under: S.No Chapter/Heading/Sub-Heading/Tariff Item Description of Goods 63 3004 Medicaments (excluding goods of heading 30.02, 30.05 or 30.06) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses (including those in the form of transdermal administration systems) or in forms or packings for retail sale, including Ayurvaedic, Unani, homoeopathic siddha or Bio-chemic systems medicaments, put up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the HSN formulated by WCO for which the said notes are issued. Relevant portion of the said notes under heading 3808 in context of sanitizers is as under: (IV) Disinfectants Disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro-organisms, generally on inanimate objects. Disinfectants are used, for example, in hospitals for cleaning walls, etc., or sterilising instruments. They are also used in agriculture for disinfecting seeds and in the manufacture of animal feeds to control undesirable microorganisms. The group includes sanitisers, bacteriostats and sterilisers. 16. As such, it is observed that although the term disinfectants appears to be limited to agents which are generally applied on inanimate objects, it also includes sanitizers expressly. Therefore the ambit of the terms used in the heading 3808 extends to even those goods such as sanitizers which are applied on the human hands and not just on an inanimate objects. 17. We find that the Ministry of Finance issued a press release dated 15.07.2020 clarifying that 'hand sanitizers attract GST at the rate of 18%'. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lth, Seventh Edition defines 'injury' as 'harm or hurt; usually applied to damage inflicted on the body by an external force'. Again, in Medical terms 'illness' or 'ailment' is often defined as 'a physical or mental disorder'. As such, the hand santiser is not a medicament being not used for treatment of illness or injury. 22. In Ciens Laboratories case {2013 (295) E.L.T. 3(S.C.)}, the Hon'ble Supreme Court has held that prior to adjudicating upon whether a product is a medicament or not, Courts have to see what the people who actually use the product understand the product to be. If a product's primary function is care and not cure , it is not a medicament . Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal. products are used to treat or cure some medical condition. A product that is used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities, is to be branded as a medicament. 23. The Hon'ble Supreme Court in the case of Commissioner of Central Excise v. M/s Sarvotham Care Limited (2015 (322) E.L.T. 575 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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