TMI Blog2023 (9) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... e to understand what are the two tests that have been accepted by the Supreme Court. The first test is common understanding of the product 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 Tribunal did not direct remand, for ascertaining the question of fact regarding ingredients of the product. Instead, without itself ascertaining on the fact, it went on to dismiss the appeal of revenue. There was no satisfaction rendered by opposite party (assessee) on the second test. It must be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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 and natural oil extracts in an advanced formulation providing one s skin the perfect care it needs. Largely used during winters as an antiseptic cream, for smooth and beautiful skin, lips, elbows and feet. Boroplus echoes the celebration of good skin. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to this effect. One such study is by Dr. Sunita Patra, Ayurvedic Medical Officer, Govt. Ayurvedic Dispensary, Kudutuli, Kandhamal. In her evaluation report, the copy of which was submitted at the time of appeal hearing, the medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 similar opinion about user of the product. There is no mention in the order that either or any of the reports said, the product is not for continuous use. Neither of the reports was accepted by the Commissioner f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 upon by petitioner was so done at this stage and not in the earlier proceedings, ascertained by us on query made. Hence, we disregard the advertisement in our adjudication. 10. In view of af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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