JUDGMENT : Petitioner, a dealer under the KGST Act and KVAT Act, seeks for a declaration that the words "including medicated talcum powder" as found in Entry 127 of the First Schedule to the Kerala General Sales Tax Act, 1963 during the period from 01/04/1992 to 31/12/1999 and the words "including medicated talcum powder" as found in Entry 144 to the KGST Act during the period from 1/1/2000 to 31/3/2005 as unconstitutional and violative of Articles 14, 19(1)(g) and 265 of the Constitution of India. 2. The short facts involved in the writ petition would disclose that the petitioner is a dealer under the KVAT Act 2003 and also under the KGST Act, 1963. Petitioner deals with prickly heat powder sold under the brand name Nycil. The product is manufactured by a company by name Manisha Pharmo Plast Private Ltd, which has obtained licence to manufacture drugs under Rule 154 of the Drugs and Cosmetics Rules, 1945. Ext.P1 is the drug licence. Petitioner also obtained licence under Rule 61 to stock and sell the drug in question which is still in force. Ext.P2 is the licence dated 1/1/2000. Drug is defined under Section 3(b) of the Drugs and Cosmetics Act, 1940 as including 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, medication or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling inspects like mosquitoes, other substances, devices etc. 3. According to the petitioner, the preparation of Nycil is a drug or medicine. It is contended that as far as Central Excise Law is concerned, Nycil prickly heat powder is considered and treated as a drug. Earlier, it fell under tariff item 14E and after amendment to the Central Excise Tariff, Chapter 30 dealt with drugs and medicines and a Division Bench of the Delhi High Court has held that Nycil Heat Prickly powder was a drug or a medicine falling under Chapter 30.03 of the Central Excise Tariff Act, 1985. This position had been affirmed by the Apex Court. This position had been affirmed by the Apex Court. Petitioner also refers to the judgment of Apex Court in Muller and Phipps (India) Limited v. Collector of Central Excise, Bombay-I [ (2004) 4 SCC 787 ], in which it is held that prickly heat powder is a medicine and not a cosmetic. The Gujarat High Court in B.Shah and Company v. State of Gujarath [ 1971 (28) STC 5 (Guj)] has also held so. Petitioner states that from assessment years 1992-93 to 1998-99, assessments were completed treating the prickly heat powder as drug. In regard to assessment year 2000-2001, the assessment was completed classifying Nycil Prickly Heat powder as a medicated talcum powder falling under Sl.No.144 of 1st Schedule to the KGST Act which was identical to the previous Sl.No.127 of 1st Schedule. In regard to assessment year 1999-2000, assessment was completed treating Nycil as a drug or medicine and thus levying sales tax only at 8%. However notice had been issued under Section 34 proposing to assess the turnover as medicated talcum powder subjecting the same to tax at 20%. Though the petitioner filed objections, as per order dated 16/2/2006, it was held that prickly heat powder was taxable under Sl.No.127 of First Schedule. Petitioner preferred an appeal with respect to assessment year 1999-2000. However, the appeal came to be dismissed as per Ext.P3 order dated 14/11/2006. Petitioner filed revision as ST Revision No.164/2007 before this Court. In respect of assessment year 2000-2001, petitioner was taxed at 20% at Sl.No.144. He preferred an appeal which was dismissed as per order dated 20/2/2008 (Ext.P4). Petitioner filed ST. Revision No. 172/2008 and both the revisions were dismissed by the High Court by a common judgment dated 29/9/2008. Ext.P5 is the said judgment. It was held that in so far as the definition is inclusive under Entry 127 of the 1st Schedule, the commodity in question would have been treated as a medicine. In so far as the legislature consciously used the expression "including" after the expression talcum powder, the intention is to include medicated talcum powder under Entry 127. Therefore, though Nycil powder has all the qualities and ingredients of medicine, since the same is basically a talcum powder, which has preventive and curative value, the same requires to be brought under the special entry rather than general entry. Therefore, though Nycil powder has all the qualities and ingredients of medicine, since the same is basically a talcum powder, which has preventive and curative value, the same requires to be brought under the special entry rather than general entry. The petitioner had preferred a Special Leave Petition and special leave is already granted as per order dated 8/3/2010 (Ext.P6). Though the petitioner challenged the vires of the 1st schedule under Article 32 of the Constitution of India, the Apex Court did not entertain the same on the ground that the writ petition should be filed under Article 226 of the Constitution of India. It is in the said circumstances that this writ petition is filed. 4. The main contention urged by the petitioner is that while a drug intended for skin care delivered in the form of a cream or an ointment get taxed at the rate of 8% under Sl.No.79 of the 1st schedule of the KGST Act, a drug for skin care delivered through the medium or vehicle of a powder is taxed at a higher rate of 20%. Therefore the classification is irrational between drugs for skin care delivered through medium of a cream or ointment and that delivered through the medium of powder. It is submitted that clubbing of medicated talcum powder with cosmetics under Sl.No.144 (previously No.127) is discriminatory and unconstitutional viewed in the light of the judgment of the Apex Court in Muller and Phipps (India) Ltd (supra). 5. Counter affidavit has been filed by the 2nd respondent wherein it is stated that the major component in prickly heat powder is talcum purified which is used in all talcum powders. Starch is the component which is normally used in other normal talcum powder as an absorbent. The predominant element in the Ncyil is the component used in other talcum powder. Hence, the contention of the petitioner has no merit. Further, it is submitted that the decision of the High Court in ST.Rev.Nos.164/2007 and 172/2008 has virtually decided the issue and there is no reason why the matter should be reagitated in a separate writ petition. It is further submitted that the Entry 127 of First Schedule clearly indicates that it is an inclusive definition and therefore there cannot be any dispute regarding the fact that the product of the petitioner is liable to be taxed at 20%. 6. It is further submitted that the Entry 127 of First Schedule clearly indicates that it is an inclusive definition and therefore there cannot be any dispute regarding the fact that the product of the petitioner is liable to be taxed at 20%. 6. Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the State. 7. Learned counsel for the petitioner placed reliance upon the following judgments:- (i) Muller and Phipps (India) Ltd v. Collector of Central Excise, Bombay-I [ (2004) 4 SCC 787 ] In that case, the Apex Court was considering a challenge to an order passed by the Customs, Excise and Gold (Control) Appellate Tribunal wherein the question raised was whether Johnson's prickly heat powder and Phipps Processed talc are patent or proprietary medicines classifiable for the purpose of excise duty under erstwhile tariff item 14-E (prior to 1/3/1986) and the heading 30.03 (after 1/3/1986) as claimed by the appellants or whether they are cosmetics or toilet preparations falling under erstwhile Tariff Item 14-F (Prior to 1/3/1986) and heading 33.04 (after 1/3/1986) as claimed by the Department. In that case, the Tribunal held that the products in question are cosmetics and not medicament on the basis that boric acid, salicylic acid and zinc oxide present in the object are subsidiary pharmaceutical or antiseptic constituents and their curative and prophylactic value is subsidiary and therefore the product is a preparation for the care of the skin and is classifiable under Tariff Item 14-F and under Heading 33.04. The Apex court having considered the matter decided the issue at paragraphs 9 to 13 reversing the view of the Tribunal, which reads as under:- "9. After noticing the finding of the Harmonized System Committee the Tribunal noted that the Central Excise Tariff is now based on HSN and the opinion and recommendation of the Committee cannot just be brushed aside simply because similar products are manufactured or sold under drug licence. 10. Indeed, the effect of Harmonised System of Nomenclature (HSN) classification came up for consideration before this Court in Collector of Central Excise, Shillong vs. Wood Craft Products Ltd., 1995 (3) SCC 454 . 10. Indeed, the effect of Harmonised System of Nomenclature (HSN) classification came up for consideration before this Court in Collector of Central Excise, Shillong vs. Wood Craft Products Ltd., 1995 (3) SCC 454 . This Court stated therein that when the Central Excise Tariffs are based on internationally accepted nomenclature found in the HSN, any dispute relating to tariff classification must so far as possible be resolved with reference to nomenclature indicated by HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself and it was further emphasised therein that when the Central Excise Tariff Act is enacted on the basis and pattern of HSN the same expression used in the Act must as far as practicable be construed to have the meaning which is expressly given to it in HSN when there is no indication in the Indian tariff of a different intention. 11. But in the present case when throughout the meaning given to products in question not only by the department itself but also by other departments like Drug Controller and the Central Sales Tax authorities is that the product in question is a medicinal preparation should be accepted. 12. Applying the principles enunciated in BPL Pharmaceuticals Ltd. case and taking into consideration various circumstances as to the manner in which the goods had been treated on the earlier occasions by the department and the product having been utilised with reference to the commercial parlance and understanding, that it had been treated as a drug it would not cease to be one notwithstanding the fact that new tariff act has come into force. What is to be seen in such cases is when in the common parlance, for purpose of the Drug Act, for purpose of Sales Tax Act and in various findings recorded on earlier occasions by the department itself having been noticed, the conclusion is inevitable that the products in question must be treated as medicinal preparations. 13. Therefore, we have no hesitation in reversing the view of the Tribunal and restore that of the Collector." (ii) In Commissioner of Central Excise v. Ciens Laboratories (2013 (3) KLT S.N.111), the Apex Court considered the question whether a cream used for treating dry skin condition render the product a medicament and not a cosmetic. 13. Therefore, we have no hesitation in reversing the view of the Tribunal and restore that of the Collector." (ii) In Commissioner of Central Excise v. Ciens Laboratories (2013 (3) KLT S.N.111), the Apex Court considered the question whether a cream used for treating dry skin condition render the product a medicament and not a cosmetic. This was also considered in the light of the heading under the HSN as to whether it is under 30.03 or 30.04 After considering the relevant statutory issues, it was held at paras 19, 20 and 21 as under; "19. Thus, the following guiding principles emerge from the above discussion. Firstly, when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive. What is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic. Secondly, though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics. There are several products that are sold over-the-counter and are yet, medicaments. Thirdly, prior to adjudicating upon whether a product is a medicament or not, Courts have to see what the people who actually use the product understand the product to be. If a product's primary function is "care" and not "cure", it is not a medicament. Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical condition. A product that is used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities, is to be branded as a medicament. 20. In the case of 'Moisturex', there is no dispute that the said cream is prescribed by the dermatologist for treating the dry skin conditions and that the same is also available in chemist or pharmaceutical shops in the market. The cream is not primarily intended for protection of skin. The ingredients in the cream, the pharmaceutical substances do show that it is used for prophylactic and therapeutic purposes. The Central Excise Tariff Act has unambiguously clarified as to what is a medicament for curing an ailment relating to skin. The cream is not primarily intended for protection of skin. The ingredients in the cream, the pharmaceutical substances do show that it is used for prophylactic and therapeutic purposes. The Central Excise Tariff Act has unambiguously clarified as to what is a medicament for curing an ailment relating to skin. Heading 33.04 dealing with beauty or make-up preparations and preparations for the care of the skin has specifically excluded medicaments. There is also an indication under the same entry that medicinal preparations used to treat certain complaints are to be provided under the Heading 30.03 (medicaments) or 30.04 (products containing pharmaceutical substances used for medical, surgical, dental or veterinary purpose). 21. Tribunals, the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench at Mumbai in the first case and Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai in the other, having regard to the pharmaceutical constituents present in the cream 'Moisturex' and its use for the cure of certain skin diseases, have rightly held that the same is a medicament liable to be classified under the Heading 30.03 (medicament). Thus, there is no merit in these appeals." (iii) In Manisha Pharma Plasto Pvt. Ltd v. Union of India [ 1999 (112) E.L.T. 22 (Delhi)], the Delhi High Court was considering the classification of Nycil Prickly heat powder as to whether it was coming under heading 30.03 or 33.04. It was held at paras17 to 20 as under; "17. We have carefully considered the entire matter. In our view firstly, the product in question satisfies the common parlance or popular meaning test, i.e., popular meaning attached to a product by a consumer. The product is not used by consumers as a daily-use talcum powder. It is a product normally used for the specific purpose of treating prickly heat and as soon as the ailment is treated, the use of the product is discontinued. To illustrate the point further we have the analogy of Boroline cream as in the Calcutta High Court judgment in Union of India Vs. G.D.Pharmaceuticals Limited (supra). The SLP against this judgment was dismissed by the Supreme Court. Boroline cream was held to be a medical preparation not classifiable as a cosmetic. Another example of similar nature could be the specialised dental creams which are available for treatment of gum ailments. G.D.Pharmaceuticals Limited (supra). The SLP against this judgment was dismissed by the Supreme Court. Boroline cream was held to be a medical preparation not classifiable as a cosmetic. Another example of similar nature could be the specialised dental creams which are available for treatment of gum ailments. The use of these specialised dental creams is for specific purpose and for a limited period. Rather the dentists advise that such medicated dental creams should not be used for long because they may desensitise the gums. The product in question contains a particular medicine namely, Chlorphenesin IP. The inclusion of this medicine in the composition makes all the difference as found by the HSC. It was because of use of this medicine in Nycil prickly heat powder that the HSC classified it differently as compared to Johnson prickly heat powder and Shower to Shower powder. 18. We also find force in the submission made on behalf of the petitioner that the opinion of the Harmonised Systems Committee has lot of weight and should ordinarily be taken as binding. As its very name suggests, the Committee is meant to harmonise the conflicting interpretations of products and their formulae in the member countries in view of international trade. In the present case it has to be noted that not only the HSC opinion goes against the respondent, the respondents themselves were all along classifying the product in question under the category of medicaments and not as cosmetics. We find no merit in the submission made on behalf of the respondents that the product is basically a powder and will always retain as its basic character as a talcum powder even if some medicine is added to it, the base being purified talc. It is the addition of medicines which changes its basic character. 19. The result is that this petition succeeds. We hold that Nycil prickly heat powder is liable to be classified under tariff heading 33.03 and not under the heading 33.04 dealing with cosmetics. The circular dated 20th November, 1997 and the decision of the Central Board of Excise and Customs dated 20th November, 1997 holding that Nycil prickly heat powder is to be classified under heading 33.04 are hereby quashed so far as the product of the petitioner is concerned. It follows that the show cause notice dated 26th November, 1997 also stands quashed. It follows that the show cause notice dated 26th November, 1997 also stands quashed. In the facts and circumstances of the case, there will be no order as to costs. 20. (Order) By this application, the learned counsel for the applicant has pointed out a typographical error in the last para of the judgment. We agree with the learned counsel for the applicant that in the third line of the last para of the judgment the Tariff Entry should read as 30.03 and not 33.03 as it presently occurs there. The application is accordingly allowed. The correction is being made in the original judgment also under our initials." 8. There cannot be any dispute about the law laid down by the Apex Court as well the Delhi High Court as far as the classification of Nycil prickly heat powder in so far as the respective HSN Code is concerned. But the question in this case is whether the statute which includes the medicated talcum powder as one of the categories for the purpose of taxation can be struck off as ultra vires on the ground of arbitrariness or illegality. 9. Until 01/04/1992, as per Sl.No.75 of 1st Schedule, other medicines and drugs including ayurvedic, homeopathic, sidha and unani preparations were taxed at the rate of 6%. Talcum powder and other perfumeries and cosmetics not falling under any other item was taxed at 10%. From 01/4/92 to 31/12/1999, under Sl.No.79, medicines and drugs including allopathic, ayurvedic, homeopathic, sidha and unani preparations and glucose I.P. were taxed at 8%, whereas under Sl.No.127, shampoo, talcum powder including medicated talcum powder, sandalwood oil, ramacham oil, cinnamon oil and other perfumeries and cosmetics not falling under any other entry in the schedule was taxed at 20%. From 1/1/2000, Sl.No.127 had been changed to 144 and the tax was imposed at 20%. It is apparent from the Schedule that the rate of tax is not fixed on the basis of HSN Code whereas rate of tax has been specified based on specific entry made in the Schedule. The petitioner's product apparently is a medicated talcum powder and it is so found by Division Bench of this Court in S.T.Revn.Nos.164/2007 and 172/2008. In the said order, all the judgments cited by the petitioner and also various other judgments on the point had been considered and it was held at para 59 as under:- "59. The petitioner's product apparently is a medicated talcum powder and it is so found by Division Bench of this Court in S.T.Revn.Nos.164/2007 and 172/2008. In the said order, all the judgments cited by the petitioner and also various other judgments on the point had been considered and it was held at para 59 as under:- "59. After carefully going through all the decisions on which reliance was placed by learned counsel for the assessee, we are of the view that none of the decisions would assist him in any manner whatsoever, since those decisions were either rendered while construing entries under different enactments or under different facts and circumstances. We sum up the whole issue by observing that when the legislature has treated Medicated Talcum Powder as different from Medicine for the purpose of taxation, it is not the province of the courts to question the policy of the legislature underlying it. We are, therefore, of the opinion that the Appellate Tribunal has applied the correct principles in concluding that the product in question cannot be classified under a general entry but requires to be classified under special entry, namely entry 127 of first schedule to the KGST Act. We are in agreement with the reasoning and conclusions reached by the Tribunal. We see no reason to interfere with the conclusion reached by the Tribunal and therefore, we dismiss these revision cases, but make no order as to costs." It would also be relevant to note paragraphs 38 to 41:- "38. All this discussion would lead us to draw a distinction whether Nycil Powder is mere talcum powder which is normally used for the purpose of smoothening and giving a fair look to the skin or has the qualities of preventive or curative effect for ailment of skin. We would definitely say that 'Nycil Powder' is not an ordinary talcum powder as understood in common or commercial parlance, but has a medicinal value and is used for treatment of prickly heat and other skin ailments. But then, under which entry we should classify the commodity in question. In our view, if not for the inclusive definition under entry 127 of the first schedule to the KGST Act, we would not had any hesitation in classifying the commodity in question as a medicine. But then, under which entry we should classify the commodity in question. In our view, if not for the inclusive definition under entry 127 of the first schedule to the KGST Act, we would not had any hesitation in classifying the commodity in question as a medicine. In our view, the legislature consciously immediately after the expression talcum powder, by employing the expression 'including' has thought it fit to include "medicated talcum powder" under Entry 127 of first schedule to the Act. In view of this inclusive definition, though the nycil powder has all the qualities and ingredients of medicines and since the same is basically a talcum powder which has preventive and curative power, the same requires to be brought under the special entry rather than the general entry. 39. The Apex Court in Ponds India Ltd.'s case, 15 VST 256, has stated, that, it is true that the court must bear in mind the precise purpose for which the statute has been enacted, namely herein for the purpose of collection of tax, but the same by itself would not mean that an assessee would be made to pay tax although he is not liable therefor, or to pay higher rate of tax when he is liable to pay at a lower rate. 40. The legislative entry 127 of first schedule immediately after the expression talcum powder has used the word 'including'. The word include/including, as we have already stated, is used in interpretation clause to enlarge the meaning of the word in the statute. When such word is used in an interpretation clause, it must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. A court of law in construing a statute with an interpretation clause using the expression 'includes' is bound to give effect to the direction in the statute itself, unless it can be shown that the context of that particular passage where the expression is used shows clearly that the meaning is not in this place to be given effect to. A court of law in construing a statute with an interpretation clause using the expression 'includes' is bound to give effect to the direction in the statute itself, unless it can be shown that the context of that particular passage where the expression is used shows clearly that the meaning is not in this place to be given effect to. The courts have to resort to such interpretation and construction which is reasonable and purposive with the object sought to be achieved by the Act enacted by the legislature, where the primary object is to raise revenue and for that purpose, various products are differently classified, the entries are not to be understood in its scientific and technical meaning, but the terms and expressions used in entries have to be understood by their popular meaning, i.e., the meaning that is attached to them by those using the product. 41. Entry 127 of the first schedule provides a more specific description of the goods than under entry 79 of the first schedule. When there is a particular or specific entry in a fiscal statute, the general entry has to give way to the specific entry. This court in the case of Reliance Trading Company vs. State of Kerala, 119 STC 321 has observed, if there are two entries, one general and the other specific, the ordinary rule of construction that a general entry must give way to a specific entry is to be followed. The authority is to see that if two entries are apparently in conflict with one another, an attempt must be made to construe them harmoniously and not to treat them repugnant to each other. A commodity falling under the general entry as also a specific entry has to be taxed in terms of special entry as the same is to prevail over the general entry. Therefore, in our considered opinion, though the Nycil Prickly Heat Powder is used for the care of the skin and not cure of the skin and though it contains a small quantity of Chlorphenesin, which has curative effect; in view of the specific entry, it has to be classified only under Entry 127 of First Schedule to the KGST Act and not under Entry 79 of the Act which speaks of Medicines and drugs." Then the only question is whether the Entry in the Statute is unconstitutional in any manner. It is settled law that a legislative provision cannot be struck down by this Court lightly. Fiscal measures adopted by the Government in a taxing statute cannot be termed as arbitrary, however, harsh it may be. Despite contending that the provision is unconstitutional, no facts are placed to arrive at such a finding. 10. In the result, I do not think that this Court will be justified in interfering with the Entry by which medicated talcum powder has been included in the Schedule to the KGST Act by which tax is levied at 20%. Hence, I do not find any reason to grant the reliefs prayed for. Writ petition is dismissed.