TMI Blog2022 (7) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the facts and as the issue in question is in the academic interest and as there is no revenue implication as there are no tax dues and therefore there is zero tax effect, the present proceedings is closed keeping the larger question on the Common Parlance Test open, to be considered in an appropriate case in a like matter. Appeal disposed off. - CIVIL APPEAL NO. 7322 OF 2021 - - - Dated:- 11-7-2022 - M. R. SHAH And SANJIV KHANNA , JJ. For the Appellant : Ms. Astha Mehta , Adv. Ms. Deepanwita Priyanka , AOR For the Respondent : Ms. Kavita Jha , AOR Mr. Shammi Kapoor , Adv. Ms. Swati Agarwal , Adv. Mr. Udit Naresh , Adv JUDGMENT M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.07.2016 passed by the High Court of Gujarat, at Ahmedabad in STR No.4 of 2005 by which the High Court has answered the reference in favour of the respondent assessee dealer holding that the product KADIPROL sold by the respondent can be categorized as Poultry Feed falling under Entry 25 of Schedule I of the Gujarat Sales Tax Act (hereinafter referred to as GST Act ) and not as a Drug and Medicine under Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent assessee. 4. Ms. Aastha Mehta, learned Counsel appearing on behalf of the appellant State of Gujarat has submitted that in the facts and circumstances of the case, the High Court has committed grave error in overturning the findings given by the Tribunal and the Deputy Sales Tax Commissioner holding that the product KADIPROL can be categorized as Drug and Medicine . 4.1 It is submitted that the High Court has not given any reason whatsoever to overturn the findings given by the Tribunal as well as the Deputy Sales Tax Commissioner. It is submitted that both the authorities below in fact considered the expert literature on the subject which ought not to have been brushed aside by the High Court without giving any independent reasoning. 4.2 It is submitted that the composition of KADIPROL for every 100 gm was (a) Emporium (Amprolium) Hydrochloride 25 gm and (b) Vitamin K3 250 gm. 4.3 It is submitted that the same product was used to provide protection against coccidiosis due to anticoccodial property of emporium. It is submitted that the presence of Vitamin K in KADIPROL prevents loss of blood by ensuring adequate availability of prothrom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Glaxo Laboratories (India) Ltd. vs. State of Gujarat [(1979) 43 STC 386 (Guj)]. It is submitted that neither Pfizer judgment nor Glaxo judgment of the High Court have held that nonnutritional additives would be considered as poultry feed . 4.6 It is submitted that the view taken by the High Court relying on the decision in case of M/s. Pfizer (India) Ltd. (Supra) has widened the ambit of poultry feed so as to restrict the meaning of Entry Drug and Medicine . It is submitted that no Entry under the Schedule can be interpreted so broadly so as to include even products which have medicinal properties. It is submitted that since the product is sought to be exempted under Entry 25, the meaning given to poultry feed cannot be widened and has to be construed strictly. It is submitted that such an interpretation gives undue and subjective power on dealers to use any product as poultry feed thereby getting exemption of tax. 4.7 It is submitted that in the case of Eskayef Limited vs. Collector of Central Excise [(1990 4 SCC 680], it is held by this Hon ble Court that the products Neftin50 and Neftin200 which are used for prevention and treatment of ailments such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place the essential tissues; breakdown of which occurs in the body continuously. It is submitted that the ration of poultry may be divided for convenience into two parts: (1) maintenance ration, viz. the portion of the died which just enables the poultry at rest to carry on the essential processes of life, such as breathing and circulation of blood, without either gain or loss of weight; and (2) feed supplied over and above the maintenance requirement for augmenting the production for growth or fattening; or for augmenting egg laying capacity. 5.4 It is submitted that in the present days when the maintenance of the poultry has become so costly, the poultry is not kept in a farm in a state of nonproduction. It is submitted that to make the poultry financially viable, it is but necessary to supply a balanced poultry feed to increase the production of eggs or fat and growth if the poultry is kept for consumption of its meat. It is submitted that over a period of time, when the concept of poultry feed has changed considerably, it does not mean food for poultry in conventional sense. It consists not only of concentrates but even additives, like vitamins, minerals and antibodies which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs (Import) Mumbai vs. Dilip Kumar and Company and Ors. [(2018) 9 SCC 1] by which this Court overruled the decision of this Court in the case of Sun Export Corporation vs. Collector of Customs, Bombay [(1997) 6 SCC 564] to the extent wherein Sun Export Case held that in case of ambiguity, benefit of exemption notification should go to the assessee, shall not be applicable to the facts of the case on hand. It is submitted that in the present case, it is not the case of respondent that the product KADIPROL was covered within the ambit of any exemption notification and therefore, in case of ambiguity, the benefit should go to the respondent. It is submitted that present case pertains to the classification of the product KADIPROL which is poultry feed supplement as to whether the same is classifiable as poultry feed or as Drug and Medicine . 5.9 It is further submitted by Ms. Jha, learned Counsel appearing for the respondent that even under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as Gujarat VAT Act ), sale and purchase of poultry feed are exempt from tax under Entry 48 Schedule I of the Gujarat VAT Act. It is submitted that even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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