JUDGMENT : Hon'ble Ashwani Kumar Mishra,J. 1. Revenue is before this Court in revision against an order of the Commercial Tax Tribunal, Ghaziabad dated 5th May, 2017 passed in Second Appeal No.1674 of 2014. Proceedings relate to assessment year 2009-2010 (UP) under Section 28(2) of the U.P. VAT Act. Tribunal by its order has allowed the second appeal of the assessee. Issue raised in this revision is confined to classification of two products i.e. (i) Chlormint with Herbasol and (ii) Happydent White. Tribunal has accepted claim of assessee that 'Chlormint with Herbasol' and 'Happydent White' are ayurvedic medicines manufactured pursuant to drug licence issued under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'Act of 1940') and are thus liable to be taxed @ 4% in view of Item 41 of Part 'A' in Schedule-II to U.P. VAT Act. Tribunal has negatived the contention of the revenue that the product is not covered under Entry 41 of Part 'A' of IInd Schedule and is liable to be taxed under the residuary entry in Schedule-V @12.5%. For arriving at such conclusion, Tribunal has placed reliance upon a Division Bench judgment of Uttarakhand High Court in respect of same assessee, and same products, in Commissioner, Trade Tax/Commercial Tax Vs. Perfetti Van Melle (India) Pvt. Ltd., reported in (2009) 19 VST 218 (UTT). Nature of product, relevant literature on the subject and the applicable provisions of law are noticed in the judgment, which shall be dealt with at the appropriate stage. 2. The applicable provisions of Uttaranchal Value Added Tax Act, 2005 are on similar lines to the U.P. Value Added Tax Act, 2008. The taxing entry are substantially similar. Item 41, existing in Part-A of Schedule-II of the U.P. Act, as amended from time to time, as also the residuary entry occurring in Schedule-V, are extracted hereinafter:- "S.No.41: Originally as per The Uttar Pradesh Value Added Tax Ordinance (U.P. Ordinance No.37 of 2007) published under Notification No.2643(2)/79-V-I-07-2(KA) 41/2007, dt. 20.12.2007 S.No.41 of Schedule-II Para-A stood as under: "41. Drugs & Medicines including vaccines, syringes & dressings, medicated ointments, light liquid paraffin of IP grade." The above entry has been incorporated in The U.P. Value Added Tax Act, 2008 published in the U.P. Gazette, dt.27.2.2008. W.e.f. 9.4.2008. Above entry at S.No.26 substituted by the following by Noti. No. KA.NI.-2-1021/XI- ........, dt. 9.4.2008 (S.No.15): "41. Drugs & Medicines including vaccines, syringes & dressings, medicated ointments, light liquid paraffin of IP grade." The above entry has been incorporated in The U.P. Value Added Tax Act, 2008 published in the U.P. Gazette, dt.27.2.2008. W.e.f. 9.4.2008. Above entry at S.No.26 substituted by the following by Noti. No. KA.NI.-2-1021/XI- ........, dt. 9.4.2008 (S.No.15): "41. Drugs & Medicines including vaccines, syringes & dressings, medicated ointments, light liquid paraffin of IP grade; Chooran." W.e.f. 30.9.2008. The above entry at S.No.41 substituted by the following entry by Noti. No. KA.NI.-2-2758/XI-......., dt. 29.9.2008(S.No.24): "41. Drugs & Medicines excluding medicated soaps, shampoo, antiseptic cream, face cream, massage cream, eye gels, and hair oil which are not included in Schedule C, C(1), H or X, of the Drugs and Cosmetic rules, 1945 but including vaccines, medicated ointments, light liquid paraffin of IP grade; chooran; sugar pills for medicinal use in homeopathy." * * * * * SCHEDULE-V {See clause (d) of sub-section-(1) of section-4 of the Uttar Pradesh Value Added Tax Act, 2008} List of goods taxed at 12.5% S. No. Name and description of goods 1 All goods except goods mentioned or described in Schedule-I, Schedule-II, Schedule-III and Schedule-IV of this Act. 3. In the context of the issue raised, the following question is framed for consideration in the present revision:- "Whether on the facts and in the circumstances of the case the Commercial Tax Tribunal was legally justified in holding that chlormint herbasol and happydent white as medicine and not an unclassified commodity?" 4. Sri A.C. Tripathi, learned Standing Counsel for the Revenue has taken the Court through the order of the Tribunal, as also the orders passed by the first appellate authority and the assessing authority in respect of the products in question. Learned Standing Counsel submits that the two products are actually mouth freshener and are similar to Chewing gum/Bubble gum, which are confectionery items liable to be taxed under the residuary entry @ 12.5%. It is contended that Tribunal has erred in failing to apply 'common parlance test', so as to ascertain the true nature of the product itself. It is contended that merely because product is manufactured under a drug licence would not be the conclusive proof of it being a drug or medicine. It is also contended that both the products are sold across the counter even without Doctor's prescription. It is contended that merely because product is manufactured under a drug licence would not be the conclusive proof of it being a drug or medicine. It is also contended that both the products are sold across the counter even without Doctor's prescription. It's sale is otherwise not restricted to a chemist shop. Submission is that the assessee has failed to adduce any evidence to establish that products in question are medicine and not unclassified commodity. To support the above proposition, reliance is placed upon a decision of this Court in Paras Pharmaceuticals Limited Vs. Commissioner, Trade Tax U.P. Lucknow, reported in 2007 NTN (33) 313. The decision of the Apex Court in Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhawan Ltd., reported in 2010 NTN (42) 63, is also relied upon to strengthen the proposition so advanced. 5. Revision is opposed by the assessee, relying upon various judgments, which shall be dealt with in the later part of this judgment. 6. I have heard Sri A.C. Tripathi, learned Standing Counsel for the revenue, and Sri Kavin Gulati, learned Senior Counsel assisted by Sri Nishant Mishra for the assessee, and have perused the material brought on record. 7. The words 'drugs' and 'medicines' are not defined in the Act of 2008 and the definitions given to it in the Act of 1940 have been relied upon, both by the revenue and the assessee. Section 3(a) of the Act of 1940 reads as under:- "(a)- Ayurvedic, Siddha or Unani drug' includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule." 8. Section 3(h) of the Act of 1940 defines 'patent or proprietary medicine' in following terms:- "(h)- 'patent or proprietary medicine' means,: (i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parental route and also a formulation included in the authoritative books as specified in Clause (a). (ii) in relation to any other systems of medicine. . ." 9. In Commissioner, Trade Tax/Commercial Tax Vs. Perfetti Van Melle (India) Pvt. Ltd. (supra), the Division Bench of Uttarakhand High Court examined relevant literature in order to ascertain as to whether the product in question is drug and medicine. Paragraphs 9 to 12 of the judgment throws light on the issue and are reproduced hereunder:- "9. Authoritative books of ayurvedic and Siddha systems, are mentioned in Schedule A of the First Schedule of the Drugs and Cosmetic Act, 1940. Said list includes book titled 'Bhav Prakash'. Shri Sudhanshu Dhulia, learned Counsel for the respondent referred before us, item Nos. 70 and 73 of Schedule I of book titled 'Bhavprakashnighantu', written by Ganga Sahaye Pandey and Krishnachandra Chunekar. The entries in the Schedule of the said book describe qualities of peppermint and pudeena (spearmint). Our attention is also drawn to the fourth chapter of book titled 'Dravy-agurna Vijnana' Volume II, written by Prof. P.V. Sharma, in which medicinal qualities of eucalyptus are mentioned. On the basis of properties mentioned of peppermint and pudeena, it is argued that the items manufactured by the assessee have medicinal value and for the reason that the chlormint preparations included the aforesaid peppermint and spearmint, as its contents. Therefore, the same are ayurvedic medicines and not the confectionary. On the other hand, Shri Sudhir Kumar, learned Counsel for the revisionist, argued that Haldi (turmeric), Kalimirch (black pepper), etc., also have medicinal values and that does not make everything medicine. What makes an item medicine is formulae for the medicines in its proper dose for the treatment of a disease or disorder. 10. No doubt, merely for the reason that some plant or its leaves, stem, or fruit has medicinal value does not make everything ayurvedic medicine. But in the present case, literature of 'Chlormint with herbasole' and 'Happydent' (white baking soda with mint flavour) shows that the same are manufactured under ayurvedic medicine manufacturing licence No. 157 ISM (HR). Annexure I to the counter-affidavit filed in these revisions shows that the Deputy Director-cum-Licensing Authority of Directorate of Ayush Haryana, has renewed the licence of the respondent-Perfetti Van Melle (India) Pvt. Ltd. for manufacturing ayurvedic/siddha drugs. Annexure I to the counter-affidavit filed in these revisions shows that the Deputy Director-cum-Licensing Authority of Directorate of Ayush Haryana, has renewed the licence of the respondent-Perfetti Van Melle (India) Pvt. Ltd. for manufacturing ayurvedic/siddha drugs. Annexure-3 to the counter-affidavit shows that the licensing authority and Director of Ayurvedic, Haryana, has approved the preparations of 'Chlormint' and 'Happydent', manufactured by the respondent/assessee under the Drugs and Cosmetics Act, 1940. 11. It is not disputed that there are three kinds of medicines available in the market. Firstly, the medicines which can be purchased from only approved chemist/pharmacist that too only on the prescription of the registered medical practitioner. Secondly, the medicines, which can be purchased from approved chemist/pharmacist but not necessarily required to be prescribed by registered medical practitioner. And thirdly, the medicines, which can be purchased without prescription of any medical practitioner and can be had not only from the shops of the approved chemists but also from other shops. 12. It is not disputed that even those products containing formulae of constituents prescribed by authorised books of medicines, which are not prescribed by doctors and not required to be purchased necessarily from the approved chemists are also medicines, provided the same are manufactured under the drug licence issued under the Drugs and Cosmetics Act, 1940. In the present case, the items-'Chlormint' and 'Happydent' are manufactured by the assessee/respondent under the drug licence issued to it by the Directorate of Ayurvedic Medicines of State of Haryana. As to the formulations, the quantity of 'Chlormint with herba-sole' and 'Happydent' are also mentioned in the covers they are sold (as is apparent from annexures filed with counter-affidavit). As to the utility of 'Chlormint with herbasole' as mouth fresheners and that of 'Happydent' (white baking soda with mint flavour) to keep the teeth clean, are also not disputed. Only for the reasons these items are also purchased by some customers for taste also, does not make them confectionary items particularly when the same are manufactured under a valid drug licence. Only for the reasons these items are also purchased by some customers for taste also, does not make them confectionary items particularly when the same are manufactured under a valid drug licence. As such, having heard learned Counsel for the parties, and after going through the principle of law laid down in Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner Central Excise, Nagpur, 2006 (196) ELT 3 (SC) and Naturalle Heath Products (P.) Ltd. v. Collector of Central Excise, Hyderabad, 2003 ECR 513 (SC), and for the reasons discussed above, we hold that items-'Chlormint with herbasole' and 'Happydent' manufactured by the assessee under valid drug licence are ayurvedic medicines and trade tax payable on said items is four per cent as provided in Clause (b) of Sub-section (2) of Section 4 of the Uttaranchal Value Added Tax Act, 2005." 10. At this stage, it would be relevant to note that while Tribunal has taken note of aforesaid judgment, and also the literature referred to therein, but no contra evidence was adduced by the revenue before any of the authorities or even before the Tribunal. 11. It is not in dispute that the two products in question are manufactured under a drug licence issued under the Act of 1940. The observations of Uttarakhand High Court, quoted above, based upon the provisions of the Act of 1940 and the literature relied upon, have otherwise not been shown to be inapplicable in the facts of the present case, particularly as it relates to same product and assessee. The memo of appeal preferred before the Tribunal has also been produced during the course of hearing in order to show that materials/evidence were independently placed before the Tribunal for relying upon the observations made by Uttarakhand High Court. 12. The argument advanced by the revenue that the product is not sold on a medical prescription or that its sale is not restricted to a chemist shop has been dealt with and repelled by the Uttarakhand High Court. The High Court relied upon the judgment of the Apex Court in Naturalle Health Products (Pvt.) Ltd. Vs. Collector of Central Excise, reported in (2004) 9 SCC 136 , wherein the following observations have been made in paragraphs 38 and 39 of the report:- "38. The High Court relied upon the judgment of the Apex Court in Naturalle Health Products (Pvt.) Ltd. Vs. Collector of Central Excise, reported in (2004) 9 SCC 136 , wherein the following observations have been made in paragraphs 38 and 39 of the report:- "38. The same ratio has been laid down in the other judgment of this Court in the case of Commissioner of Central Excise, Calcutta vs. Sharma Chemical Works reported in 2003 (154) ELT 328 (SC). In that case, this Court held that the mere fact that a product is sold across the counters and not under a Doctor's prescription, does not by itself lead to the conclusion that it is not a medicament and that merely because the percentage of medicament in a product is less, does not also ipso facto mean that the product is not a medicament. This Court further held as under:- "It is settled law that the onus or burden to show that a product fall within a particular Tariff Item is always on the revenue. Mere fact that a product is sold across the counters and not under a Doctors prescription, does not by itself lead to the conclusion that it is not a medicament. We are also in agreement with the submission of Mr. Lakshmikumaran that merely because the percentage of medicament in a product is less, does not also ipso fact mean that the product is not a medicament. Generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. The medicament would necessarily be covered by fillers/vehicles in order to make the product usable. It cold not be denied that all the ingredients used in Banphool Oil are those which are set out in the Ayurveda text books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is normally the use it is put by the customers who use it. The burden of proving that Bhanphool Oil is understood by the customers as an hair oil was on the revenue. This burden is not discharged as no such proof is adduced. The main criteria for determining classification is normally the use it is put by the customers who use it. The burden of proving that Bhanphool Oil is understood by the customers as an hair oil was on the revenue. This burden is not discharged as no such proof is adduced. On the contrary we find that the oil can be used for treatment of headache, eye problem, night blindness, reeling, head weak memory, hysteria, ammenesia, blood pressure, insomnia etc. The dosage required are also set out on the label. The product is registered with Drug Controller and is being manufactured under a drug licence." 39. From the above, it is clear that a patent Ayurvedic medicament could be one where all the ingredients find mention in the authoritative text books on Ayurveda, though the formula for preparation of the medicament is not in accordance with the formula given in those text books. It is not in dispute that all the ingredients are mentioned in the authoritative text books on Ayurveda. In fact, in the case of appellant in Civil Appeal No. 2072/1996, the products satisfy the definition in Section 2(h) of Drugs & Cosmetics Act as "patent or proprietary" Ayurvedic medicines also. Further, the manufacture of this medicament is being done under the Ayurvedic drug licence issued by competent authority." 13. In CCE Vs. CIENS Laboratories, reported in (2013) 14 SCC 133 , the view reiterated in para 22.2 is extracted hereinafter:- "22.2. 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." 14. Aforesaid observations have been quoted with approval in Commissioner of Central Excise, Chennai-IV Vs. Hindustan Lever Limited, reported in (2015) 10 SCC 742 . 15. The only other ground pressed on behalf of the revenue is that the Tribunal has erred in failing to apply 'common parlance test' to determine the nature of product. Contention is that the assessee has failed to adduce adequate evidence to show that product in question is covered under Item 41 of Part-A of IInd Schedule. 16. Learned Standing Counsel does not dispute the factual proposition that the products in question are being manufactured upon a licence issued by the Drug Controller. Contention is that the assessee has failed to adduce adequate evidence to show that product in question is covered under Item 41 of Part-A of IInd Schedule. 16. Learned Standing Counsel does not dispute the factual proposition that the products in question are being manufactured upon a licence issued by the Drug Controller. It is also not disputed that revenue has not placed any contra evidence in the matter. The fact that product is manufactured under a drug licence and that authorities under the Act of 1940 have treated it to be a medicament is a relevant factor. 17. In CCE Vs. Hindustan Lever Ltd. (supra), the Apex Court was examining whether Vaseline Incentive Care Heel Guard is a skin care preparation or is a medicament. The product was manufactured upon a licence issued by the Drug Controller. In this context, following observations were made in para 10 of the judgment:- "10. The aforesaid case draws and delineates a clear distinction between a 'cosmetic' and a 'drug'. It further lays down that essential character of the product in question is to be kept in mind for ascertaining whether it would be a cosmetic or a drug. Another relevant consideration, which is highlighted, is to see whether in common and commercial parlance the product is known as medicine or cosmetic/skin care product. If the product is registered as medicament by the Drug Controller, that would be a strong factor to consider it as having curative or prophylactic value and it is not for the care of the skin per se." The Court went on to observe as under in para 17:- "17. ....... It also found that this product was manufactured under a drug licence as drug authorities had treated the same as a medicament. The Tribunal also found that the usage of this product was related to the effect of therapeutic or mitigating substance of prophylactic substances added. Thus, the effect of mitigation of an external condition is primary effect and the effect of smoothing the skin was secondary in nature and, therefore, it was to be treated as a medicament and classified under Chapter 30." 18. Learned counsel for the revenue has placed reliance upon a decision of this Court in Paras Pharmaceuticals Limited (supra). In the said case the Court was examining as to whether 'Bora Soft' is an ayurvedic medicine or is an ordinary cream. Learned counsel for the revenue has placed reliance upon a decision of this Court in Paras Pharmaceuticals Limited (supra). In the said case the Court was examining as to whether 'Bora Soft' is an ayurvedic medicine or is an ordinary cream. Relying upon the observations of Apex Court in Puma Ayurvedic Herbal Pvt. Ltd. Vs. CCE, reported in (2006) 3 SCC 266 , the Court observed as under:- "In Puma Ayurvedic Herbal (Pvt.) Ltd, the Supreme Court held that in order to find out whether the item is a medicament, it is not necessary that the item may be sold only under the doctor's prescription. A medicinal preparation may be purchased across the counter. The common parlance test however has to be appl ied along with the other" test namely whether the ingredients used in the product are mentioned in the authoritative text books of Ayurveda. The presence of organic ingredient mentioned in the wrapper by itself will not make a cosmetic as an ayurved medicine. Every cosmetic has some or other medicinal value and that by itself do not convert every cosmetic into a medicine. The assessee has not produced any authority or text book to show that the ingredients of the cream manufactured by them have any medicinal value; it is prescribed as medicine and that its use is limited to the cure of the ailments claimed to be cured by it." This judgment apparently has no applicability in the facts of the present case, inasmuch as the assessee has produced authoritative text to show that ingredients of product manufactured by the assessee has medicinal value. Such literature has been specifically noticed by the Uttarakhand High Court in respect of same product of the assessee. 19. In Commissioner, Central Excise, Kanpur Vs. Shree Baidyanath Ayurved Bhawan (supra), the Apex Court was examining two competing entries occurring in Chapter 30. Chapter 30 specified Pharmaceutical Products. Vide Note 1 (d) preparations of Chapter 33 were excluded even if the product had any therapeutic or prophylactic properties. Sub-heading 3306 provided for preparation for oral or dental hygiene, including dentifrices etc. It was in this context that 'common parlance test' was applied by the Apex Court to determine under which of the two competing entries the product itself would fall. Relying upon Puma Ayurvedic (supra) the Apex Court observed as under in para 42:- "42. Sub-heading 3306 provided for preparation for oral or dental hygiene, including dentifrices etc. It was in this context that 'common parlance test' was applied by the Apex Court to determine under which of the two competing entries the product itself would fall. Relying upon Puma Ayurvedic (supra) the Apex Court observed as under in para 42:- "42. There is no doubt that a specific entry must prevail over a general entry. This is reflected from Rule 3(a) of the general Rules of interpretation that states that heading which provides the most specific description shall be preferred to headings providing a more general description. DML is a tooth powder which has not been held to be Ayurvedic Medicine in common parlance in Baidyanath I1. We have already observed that common parlance test continues to be one of the determinative tests for classification of a product whether medicament or cosmetic. There being no change in the nature, character and uses of DML, it has to be held to be a tooth powder - as held in Baidyanath I1. DML is used routinely for dental hygiene. Since tooth powder is specifically covered by Chapter Sub-heading 3306, it has to be classified thereunder. By virtue of Chapter Note 1(d) of Chapter 30 even if the product DML has some therapeutic or medicinal properties, the product stands excluded from Chapter 30." 20. I find substance in the argument of Sri Gulati the learned senior counsel that the principle laid down in Shree Baidyanath Ayurved Bhawan (supra) would not have much relevance where the issue is between a specific entry and a residuary entry. The product, herein, is being manufactured under a drug licence. The assessee has discharged its initial onus by producing relevant literature to show that product would be taxed as per Item 41 of Part-A of IInd Schedule. As such the burden was upon the revenue to establish by adducing evidence that the products were not covered by this entry, and that it would fall in the residuary entry. Accordingly, no such evidence has been adduced by the revenue. Consequently, it would be difficult to accept the contention of revenue that 'common parlance test' be applied to exclude the product from Entry 41. 21. It is settled that onus or burden to show that a product falls within a particular tariff item is always on the revenue. Accordingly, no such evidence has been adduced by the revenue. Consequently, it would be difficult to accept the contention of revenue that 'common parlance test' be applied to exclude the product from Entry 41. 21. It is settled that onus or burden to show that a product falls within a particular tariff item is always on the revenue. Once the assessee has discharged its initial burden of proving the product to be covered by Entry 41, it was then for the revenue to prove by adducing cogent evidence that the product did not fall under the Entry 41, so as to take it to the residuary entry. Revenue, admittedly, has failed to discharge such onus. 22. It would be appropriate to take note of the observations made by Apex Court in CCE Vs. Hindustan Lever Ltd. (supra) in para 19, which are reproduced hereinafter:- "19. Another more important factor which needs to be stated at this stage is that though the burden was on the Department, it did not lead any evidence or produce any material to discharge this onus. It simply went by the pamphlet of the product, that too selectively picking up that portion where the product was described as good for care of the skin as well, ignoring the fact that the same very literature gives more emphasis to the therapeutic value of the product. On the other hand, the assessee had filed various affidavits of the dealers as well as consumers in support of its plea that the product was essentially a medicament, which material was blissfully ignored by the Department." 23. The assessing authority cannot rely upon its own understanding of the product or his personal knowledge to determine the nature of product after discarding specific evidence led by the assessee, particularly when no contra evidence is otherwise brought on record by the revenue. 24. In view of the discussions held, the question posed for consideration in this revision is answered against the revenue and in favour of the assessee. Revision, accordingly, fails and is dismissed.