Orissa High Court
State Of Odisha vs M/S. Shree Baidyanath Ayurved on 12 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
STREV No.2 of 2013
State of Odisha .... Petitioner
Mr. S.Mishra, ASC
-versus-
M/s. Shree Baidyanath Ayurved .... Opposite Party
Bhawan (P) Ltd.
Mr. S. Lal, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE R. K. PATTANAIK
ORDER
12.07.2022
Order No.
Dr. S. Muralidhar, CJ.
04. 1. The following two questions have been framed for
considerations by this Court order dated 9th January, 2013 while
admitting this revision petition of the Revenue arising from an
order dated 19th November, 2011 passed by the Orissa Sales
Tribunal, Cuttack in S.A. No.162 of 2009-10:
(i) Whether on the facts and in the circumstances of the
case, the Odisha Sales Tax Tribunal erred in law by
deciding the second appeal of the dealer on merit
especially when it has remitted the matter back to the
assessing authority of the Range on the ground that the
assessing authority of the Circle had o jurisdiction to
take up assessment under the Odisha Value Added Tax,
2004 of the dealer assigned with TIN?
(ii) Whether on the facts and in the circumstances of the
case, the reliance placed on the decision rendered in
State of Odisha Vrs. Magnum Pharmatech (P) Ltd.,
S.A.No.162 of 2009-10 disposed of on 19.11.2011 by
the Odisha Sales Tax Tribunal in order to come to
conclusion that "Dant Manjan Lal" is ayurvedic
medicine and therefore, the finding runs contrary to
decision rendered in CEE Vrs. Shree Baidyanath
Ayurved Bhawan Ltd., (2010) 1 GSTR 1 (SC); Dabour
India Ltd. Vrs. CST, (1997) 104 STC 198 (Ori.);
Dabour India Ltd. Vrs. CST (2004) 135 STC 187 (Ori.)
and beyond scope of Entry 26 (as it stood during tax
periods from 01.04.2005 to 30.06.2005) and Entry 46
(as it stood during tax periods from 01.07.2005 to
31.05.2007) of Part II of Schedule B appended to the
Odisha Value Added Tax Act,2004?
2. As regards the first question, it is pointed out that by the
impugned order the Tribunal itself remanded the matter to the
Assessing Authority to make a fresh assessment. Further, in terms
of the answer by this Court hereafter to the second question, the
need for such remand would not arise.
3. As regards the second question, reliance has been placed by Mr.
Sunil Mishra, learned Additional Standing Counsel for the
Revenue on the judgment of the Supreme Court in Shree
Baidyanath Ayurved Bhavan Ltd. v. Collector of Central Excise,
Nagpur (1996) 9 SCC 402, whether the very same product in
question viz., Dant Manjan Lal manufactured by the Respondent
Assessee has been held to not to be a drug or a medicine but a
cosmetic. The relevant observations of the Supreme Court in the
said judgment reads as under:
"3. We have heard the learned Counsel to some
length. He also invited our attention to the provisions
of the Drugs & Cosmetics Act, 1940, the opinion of
the Experts, the statements of a few consumers as
well as the description given in certain Ayurvedic
Books and contended that the preparation would fall
within the relevant entry in the exemption
notification. The Tribunal rightly points out that in
interpreting statutes like the Excise Act the primary
object of which is to raise revenue and for which
purpose various products are differently classified,
resort should not be had to the scientific and technical
meaning of the terms and expressions used but to
their popular meaning, that is to say, the meaning
attached to them by those using the product. It is for
this reason that the Tribunal came to the conclusion
that scientific and technical meanings would not
advance the case of the appellants if the same runs
counter to how the product is understood in popular
parlance."
That is why the Tribunal observed in Paragraph 86 of the
judgment as under:
So certificates and affidavits given by the Vaidyas do
not advance the case of Shri Baidyanath Ayurvedic
Bhawan Limited in the absence of any evidence on
record to show and prove that the common man who
uses this Dant Manjan daily to clean his teeth
considers this Dant Manjan as a medicine and not a
toilet requisite.
It is this line of reasoning with which we are in
agreement. The Tribunal rejected the claim of the
appellant holding that ordinarily a medicine is
prescribed by a Medical Practitioner and it is used for
a limited time and not every day unless it is so
prescribed to deal with a specific disease like
diabetes. We are, therefore, of the opinion that the
Tribunal applied the correct principles in concluding
that the product in question was not a medicinal
preparation ('Ayurvedic') and, therefore, the
appellant was not entitled to the benefit of the
exemption notification. Having heard the learned
Counsel at length and having perused the line of
reasoning adopted by the Tribunal with which we are
in general agreement, we see no reason to interfere
with the conclusion reached by the Tribunal and,
therefore, we dismiss these appeals, but make no
order as to costs."
4. Since the above judgment is as regards the very product with
which the present petition is concerned viz., Dant Manjan Lal
toothpaste, the aforementioned second question is answered
against the Assessee and in favour of the Department. In view of
the above conclusion, the remand by the Tribunal to the Assessing
Officer becomes unnecessary. The impugned order of the Tribunal
accordingly is hereby set aside.
5. The revision petition is disposed of accordingly.
(Dr. S. Muralidhar)
Chief Justice
(R. K. Pattanaik)
Judge
TUDU
