Case Law Details

Case Name : Commissioner of Commercial Taxes Vs M/s. Aswini Homeo Pharmacy (Supreme Court)
Appeal Number : Civil Appeal No (S). 9494-9495 of 2011
Date of Judgement/Order : 27/02/2019
Related Assessment Year :
Courts : Supreme Court of India (1095)

Commissioner of Commercial Taxes Vs Ms Aswini Homeo Pharmacy (Supreme Court)

The fact that the respondent is using the Homeopathic Pharmacopoeia referred to earlier in manufacturing of the hair oil has not been traversed by the appellant. Neither has the Commissioner dealt with that contention of the respondent nor was such a plea taken before the High Court by the appellant. Considering this, we see no reason to deviate from the conclusion reached by the High Court that the product manufactured by the respondent was rightly assessed at the relevant point of time in the assessment years 1994-1995 and 1995-1996, as covered by Entry 37 of Schedule-I of the APGST Act.

View taken in these appeals is in the fact situation of this case and confined to the assessment years 1994- 1995 and 1995-1996 only and would not apply or be of any avail to the respondent for the subsequent assessment years, in view of the amendment effected in the APGST Act.

FULL TEXT OF THE SUPREME COURT JUDGMENT

1. Heard learned counsel for the parties.

2. These appeals take exception to the judgment and order dated 10th April, 2007 passed by the High Court of Andhra Pradesh at Hyderabad in Special Appeal 8 and 10 of 2000, whereby the High Court reversed the decision of the Commissioner and restored the assessment order passed by the jurisdictional Deputy Commissioner accepting the claim(s) of the respondent that the product manufactured by the respondent by the name of ‘Aswini Homeo Hair Oil’ came under Entry 37 of Schedule-I to The Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the APGST Act’).

3. In the present appeals, we are concerned only with the assessment years 1994-1995 and 1995-1996. We need to clarify this position because Entries 36 and 37 of Schedule-I of the APGST Act have been amended after 1st August, 1996. The claim(s) in the present appeals, therefore, will have to be judged on the basis of the entries obtaining prior to 1st August, 1996.

4. It is not in dispute that the respondent, after amendment of the Entries on and from 1st August, 1996, is regularly paying sales tax in respect of the product in question with reference to Entry 36. Prior to the amendment, the same product was assessed as being covered under Entry 37. That claim of the respondent was based on the assertion that the hair oil manufactured by the respondent contains ‘Arnica Mount Q, Cantharis Q, Cinchona Q and Pilocarpine Q’ which are found in the Homeopathic Pharmacopoeia. In addition, the respondent placed emphasis on the certificate issued by the licensing authority of the State of Andhra Pradesh, certifying that the respondent was granted licence to manufacture Homeopathic medicine for external use as a drug under Section 3(b)(i) of The Drugs and Cosmetics Act, 1940 and Rule 2(d) of The Drugs and Cosmetics Rules, 1945.

5. The Commissioner had reversed the assessment order on the finding that the respondent did not produce any authority to prove or establish that the hair oil manufactured by the respondent had any curative property.

6. Notably, the Commissioner had failed to address the specific plea of the respondent that the hair oil manufactured by the respondent contains ‘Arnica Mount Q, Can tharis Q, Cinchona Q and Pilocarpine Q’ and would, therefore, qualify to be a drug within the meaning of Section 3 of The Drugs and Cosmetics Act, 1940, and if so, would be covered under Entry 37 of Schedule-I of the APGST Act; and not Entry 36 which is for general hair tonics, hair oils or hair lotions, as such. The High Court, therefore, reversed the conclusion reached by the Commissioner after noting the aforementioned contention of the respondent and, instead, held that the respondent had produced sufficient material to show that the product manufactured by the respondent was a medicine and not a cosmetic product.

7. The fact that the respondent is using the Homeopathic Pharmacopoeia referred to earlier in manufacturing of the hair oil has not been traversed by the appellant. Neither has the Commissioner dealt with that contention of the respondent nor was such a plea taken before the High Court by the appellant. Considering this, we see no reason to deviate from the conclusion reached by the High Court that the product manufactured by the respondent was rightly assessed at the relevant point of time in the assessment years 1994-1995 and 1995-1996, as covered by Entry 37 of Schedule-I of the APGST Act.

8. We once again make it amply clear that the view taken in these appeals is in the fact situation of this case and confined to the assessment years 1994- 1995 and 1995-1996 only and would not apply or be of any avail to the respondent for the subsequent assessment years, in view of the amendment effected in the APGST Act.

9. The appeals are disposed of accordingly

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