Case Law Details
In re Eskag Pharma Pvt Ltd (GST AAR West Bengal)
The labels of the products mentioned under Sl Nos. 2 to 13 of the above table describe them as dietary/health supplements. The labels of the products mentioned under Sl No. 7, 10,11 and 12 specifically mention that these products are not to be consumed as medicine or for treatment, cure or prevention of any disease. It is, therefore, clear that the products mentioned under the above serial numbers of the table above are being offered as food supplements and sometimes with specific declaration that they are not meant for use as medicine for treatment of any disease. Note 1(a) of Chapter 30 excludes food supplements from Chapter 30. These products are not, therefore, classifiable as medicament under HSN 3004.
Moreover, according to section 3(b) of the Drugs and Cosmetics Act, 1940, “drug” includes inter alia all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals. Section 18(c) of the said Act prohibits manufacture, stocking or sale of any drug without a license procured under the Act. The Applicant has failed to show any such license for the manufacture and sale of the products mentioned under Sl Nos. 2 to 13 of the above table. These products cannot, therefore, be lawfully offered to the consumers as medicines having therapeutic or prophylactic uses.
Food supplements are not specifically covered under any HSN. The Section or Chapter Notes or the Explanatory Notes to the Tariff Act do not contain any specific reference to inclusion of food supplements. The products mentioned under Sl Nos. 2 to13 of the above table are, therefore, classifiable under HSN 2106, being food preparations not elsewhere specified or included, and taxable under Sl No. 23 of Schedule III of the Rate Notification, as amended vide Notification No. 41/2017-CT(Rate) dated 14/11/2017 (corresponding State Notification No. 2019-FT dated 14/11/20174).
FULL TEXT OF ORDER OF AUTHORITY OF ADVANCE RULING, WEST BENGAL
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