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TMI Blog2023 (9) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law framed for consideration is reproduced below. "Whether on the facts and in the circumstances of the case, the products "HIMANI BOROPLUS ANTISEPTIC CREAM" and lotion are "medicines" falling within the scope of Entry 46 of Part-II of Schedule B appended to the Orissa Value Added Tax Act, 2004" 3. Mr. Padhy submits, in paragraph 8 in the petition stands quoted the advertisement in respect of the product, claimed by opposite party to have medicinal quality. The quote in the paragraph is reproduced below. "Boroplus Antiseptic Cream Millions of users believe in Boroplus, as it stands for an indelible picture of trust and care in the hearts of the consumers across the country. The product offers unique blends of herbal actives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on assessing the product to fall under residuary Part III of Orissa Value Added Tax Act, 2004. 5. Mr. Agarwal points out from the Commissioner's order that there was clear finding regarding both the tests specified by the Supreme Court. He draws attention to that part in the Commissioner's order, in which there was reliance on reports produced by his client in respect of user of the product to treat, inter alia, minor cuts. Relied upon paragraph in the Commissioner's order is reproduced below. "Coming to the product in question i.e. Himani Boro Plus antiseptic cream or lotion several studies have been conducted for evaluation of the clinical efficacy of the product. At the time of appeal hearing the ld. Advocate submitted case studies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be a medicament, which is called the common parlance test. A user of the product would use it only for treating a particular ailment and stop its use after the ailment is cured. The second test is regarding ingredients used in the product, whether mentioned in authoritative textbooks on Ayurveda. The Commissioner in allowing the appeal of opposite party did so in accepting reliance by said party on two reports. The first was on study made by Dr. Sunita Patra, Ayurvedic Medical Officer, Govt. Ayurvedic Dispensary, Kudutuli, Kandhamal. Evaluation in the report is regarding user of the product. The second report was on study conducted by Dr. Mukesh Mehta, Chief Ayurvedic Physician, Shreeji Ayurvedic Clinic, Vadali, Gujarat, who gave simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of revenue. In the circumstances, we must proceed with the revision, to answer the question of law in the absence of the finding on fact regarding ingredients. The inevitable conclusion is that there was no satisfaction rendered by opposite party on the second test. It must be said that it was for opposite party to prove the product fell under the entry as the Tribunal erred in saying the burden was on petitioner to prove the negative. 9. Coming back to the first test, on perusal of both, impugned order as well as the one made by the Commissioner carrying concurrent findings, we have been unable to notice that there was finding also on fact, regarding common parlance test. It must be mentioned here that the advertisement relied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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