PONDS INDIA LTD. , INDORE v. COMMISSIONER, SALES TAX, M. P.
2004-11-11
PRAVEEN BHAGDIKAR, SURAJ PRAKASH
body2004
DigiLaw.ai
ORDER These two Appeals are filed against order of the Appellate Dy. Commissioner, Commercial Tax, Indore in Case No. 70/97 (State) and 71/97 (State) under M.P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act') for the period 1.4.92 to 31.3.93 and 1.4.93 to 31.3.94 vide a Common Order dated 6.5.1998. The Appellants and the issues being the same, the Appeals are disposed-of by a Common Order. The Appellant, a dealer in Soaps, Cosmetics etc. also deals in a product called White Petroleum Jelly in the name of 'Vaseline'. The Appellant, was originally assessed for year 1992-93 in which the product 'Vaseline' was accepted as Medicine and taxed accordingly but later on the case was re-opened under Section 19(1) of the Act and the product 'Vaseline' was taxed at a higher rate and a penalty under Section 19(1) was also levied. For the period 1993-94, the product 'Vaseline' is not accepted as medicine, and taxed at a higher rate. The First Appeal was of no avail because the contention of the Appellant against the higher rate and penalty under Section 19(1) was rejected. The learned Counsel for the Appellant argued strongly that the product 'Vaseline' squarely falls within the scope of medicine and should be taxed at the rate of tax applicable to Drugs and Medicines. He argued that the Authorities below have wrongly treated the product 'Vaseline' as 'Vaseline' as mentioned against Entry No. 95 of Part III of Schedule II of the Act because the product 'Vaseline' is sold as two different classes of goods. One is manufactured as per standards of Indian Pharmacopeia and marketed as White Petroleum Jelly I.P. and the other one is marketed as Vaseline and is treated as Cosmetic Product by the Appellant. Shri Dave also relied on an earlier decision (1998) 21 TLD 103 (Bd) in Appellant's case regarding the same product 'Vaseline'. The Board of Revenue, M.P. has held that the product 'Vaseline' (White Petroleum Jelly I.P.) is taxable as Drugs and Medicines. The learned Counsel for the Respondent invited our attention towards a specific Entry No. 95, introduced from 20.9.90 in Part III of schedule II of the Act. Shri Dubey responded that the contention of the Appellant is not acceptable after introduction of a specific entry as Vaseline.
The learned Counsel for the Respondent invited our attention towards a specific Entry No. 95, introduced from 20.9.90 in Part III of schedule II of the Act. Shri Dubey responded that the contention of the Appellant is not acceptable after introduction of a specific entry as Vaseline. Shri Dubey also pointed out that the decision of Board of Revenue related to an earlier period when there was no such specific entry. Having heard the arguments put forward by both the parties and after perusing the records we find it relevant to refer to the disputed entry first. The Entry No. 95 introduced from 20.9.1990 reads as under : "Glycerin and Vaseline" It is not disputed that above entry was prevailing during the periods under question. It is also not disputed that the Appellant is a owner of the registered trade mark of Vaseline and under this brand name two types of White Petroleum Jelly are sold. The one which is sold as a Cosmetic Product is under no dispute but the dispute is regarding one manufactured and sold as White Petroleum Jelly I.P. The word 'Vaseline' used in Entry No. 95 is generic in nature. It takes into its fold every product that is commonly understood by it. The First Appeal Order has dealt with this issue in detail. It is clear that the generic meaning of the word 'Vaseline' covers White Petroleum Jelly and the product sold under trade mark of 'Vaseline', whether it is manufactured as per the norms of Indian Pharmacopeia is not of much significance here and it naturally points out that even if the white petroleum jelly is manufactured and sold as per medicinal standards it will still be encompassed by the word 'Vaseline'. It is now a settled law that when there is a particular or specific entry in a fiscal statute, the general entry has to give way to the specific entry. In light of this, from the date the specific entry for Vaseline was introduced, the Petroleum Jelly and the White Petroleum Jelly I.P. ceases to be classified as any other general entry including that of Drugs and Medicines.
In light of this, from the date the specific entry for Vaseline was introduced, the Petroleum Jelly and the White Petroleum Jelly I.P. ceases to be classified as any other general entry including that of Drugs and Medicines. The decision of Board of Revenue, M.P., in case of Appellant himself is also not worth relying upon since it pertains to a period prior to the introduction of specific entry of Vaseline in the Schedule which led the Board of Revenue to accept the classification of White Petroleum Jelly I.P. as Medicine. We find ourselves in complete agreement with the finding of the First Appellate Authority in this regard including the view about penalty under Section 19(1) of the Act for the period 1992-93.