Allowed

Hindustan Unilever Ltd. and Anr. v. the State of Tripura and Ors.

Tripura HC6 Sept 2017WP(C)/1284/2016

Case brief

AI extract

What is this about?

In this writ petition, the High Court of Tripura examined the classification of white and yellow petroleum jelly under the Tripura Value Added Tax Act. The court ruled that the product, manufactured under a drug license and possessing medicinal properties, is a drug rather than a cosmetic or sub-product of petroleum.

What did the court decide?

The clarifications dated 01.10.2016 and 16.02.2016 were set aside. The product is exigible to tax at 5% under Entry 67(i) of Schedule II(a) of the TVAT Act, 2004.

Hindustan Unilever Ltd. and Anr. Vs the State of… — GST and Indirect Tax | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) 1284 of 2016

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Hindustan Unilever Limited, a company incorporated under the provisions of the Companies Act, 1956 having its registered office at ‘Unilever House’, B.D. Swant Marg, Chakala, Andheri East, Mumbai-400 099 and regional office at Brooke House-9, Shakespeare Sarani, Kolkata-700 071 and is represented by Mr. Debnath Ghosh, Assistant Indirect Taxation Manager of the Company

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M/S N.C. Enterprise, a proprietorship firm having its principal place of business at Maszid Road, Agartala and is represented by its proprietor, Mr. Rajesh Dhar

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……… Petitioners

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– V e r s u s –

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State of Tripura, represented by the Commissioner and Secretary to the Government of Tripura, Department of Finance and Taxation, Tripura Secretariat, P.O. Agartala, Tripura-799006

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Commissioner of Taxes, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, Agartala799006

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Deputy Commissioner of Taxes, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, Agartala799006

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Joint Commissioner of Taxex, Government of Tripura, Pandit Nehru Complex, Gurkhabasti, Agartala799006

…….. Respondents

[2]

BEFORE

HON‟BLE THE CHIEF JUSTICE THE HON‟BLE MR. JUSTICE S. TALAPATRA

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For the petitioners : Mr. A.K. Saraf, Sr. Advocate Mr. S. Chetia, Advocate For the respondents : Mr. S.K. Deb, Sr. Advocate Mr. D.C. Nath, Addl. G.A.

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Date of hearing & delivery of Judgment & Order

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: 06.09.2017 : YES NO √

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Whether fit for reporting :

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JUDGMENT & ORDER (ORAL)

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(S. Talapatra, J)

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By means of this writ petition, the petitioner has challenged the clarification dated 01.10.2016 [Annexure-VI to the writ petition] issued by the Deputy Commissioner of Taxes and the further clarification dated 16.02.2016 [Annexure-IV to the writ petition].

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[2] The controversy as encompassed in the writ petition is that whether the white and yellow petroleum jelly [IP], which has admittedly not been specifically mentioned in the Schedules appended to the Tripura Value Added Tax Act, 2004 [in short, the TVAT Act]. Since the dominant component of the said product is light liquid paraffin, which is drug within the meaning of Drug & Cosmetic Act, 1940, according to the petitioner, it should fall under Entry 67 (i) of the Schedule (ii)(a) of the TVAT Act, 2004 and the same should be taxable at 5%. Entry 67(i) of the Schedule II(a) to the Tripura Value Added Tax Act, 2004 as

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amended by notification No.F.I.11(62)-TAX/VAT/2014 dated 24.03.2015, reads as follows:

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Schedule II(a)

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“Entry 67 (i) : Medicine and drugs (including Ayurvedic, Siddha, Unani, Spirituous medical drugs and Homeopathic drugs) including tonics, food supplements, appetizers, vaccines, syringes, dressing, medicated ointment produced under drug license, light liquid paraffin of IP grade but does not include the products capable of being used as cosmetics and toilet preparations including toothpaste, toothpowder, toilet articles, soaps and hair oil.”

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[3] The respondents were of the view that the said product is cosmetics which is used in normal condition for beautification of the skin and as such, the same should fall under Entry 45 of the Schedule II(b) of the TVAT Act, 2004 and thereby, the same shall be exigible to tax at 14.5%. Entry 45 of the Schedule II (b) of the TVAT Act, 2004 reads as follows:

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Schedule II(b)

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Entry 45 : Cosmetics and toilet articles that is to say, - Talcum powder, prickly heat powder, similar medicated body powder, shampoo of all varieties and forms, hair and body cleaning powder of all kinds, sandal wood oil, ramachom oil, cinnamon oil, perfumes, scents, snow and cream, eau de cologne, solid colognes, beauty boxes, face packs, cleansing liquids, moisturizers, make-up articles (not including talcum powder), complexion rouge, bleaching agents, hair oil, hair dyes, hair sprayers, hair removers, hair creams, lipsticks, nail polishes and varnishes, polish removers, eye liners, eye lashes and body deodorants.

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[4] The petitioner No.2 by the letter dated 07.11.2015 [Annexure-III to the writ petition] had urged the Commissioner of Taxes and Excise, Government of Tripura to clarify the rate of VAT for the said item i.e. yellow or white petroleum jelly. It was

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asserted in the said letter that the production in question is not specifically mentioned in the VAT schedules but the apex court in

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Ponds India Ltd. vs. Commissioner of Trade Tax, Lucknow, reported in (2008) 8 SCC 369 has enunciated that petroleum jelly, manufactured by a person holding license under Drugs & Cosmetic Act, 1940, is a ‘drug’ and not a ‘cosmetic’. In response to the said letter dated 07.11.2015, the Commissioner of Taxes, Government of Tripura by the letter dated 16.02.2016 [Annexure-IV to the writ petition] has clarified that the item petroleum jelly being a semi-solid mixture with hydrocarbon widely used as cosmetic skin care is taxable at 14.5% under Entry 45 of the Schedule II(b) of the TVAT Act, 2004.

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[5] The petitioner No.1 had in order to impress the Commissioner of Taxes sent a detailed response on 24.06.2016 [Annexure-V to the writ petition] contending that the white petroleum jelly is a drug and the petitioner-company had obtained a drug license under the Drugs and Cosmetics Act, 1940 for manufacturing the said product and as such, the said product would attract 5% VAT being covered under the Schedule II(a) of the TVAT Act, 2004. It has been further asserted that Rule 123 of the Drugs and Cosmetics Rule, 1945 provides that the drugs specified in the Schedule K shall be exempted from the provisions of Chapter-IV of the Drugs and Cosmetics Act, 1940 and the product in question being specified in the Schedule K is a drug within the meaning provided in Drugs and Cosmetics

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Act, 1940. The petitioner No.2 has emphatically asserted further that the product in question is not capable of being used as cosmetic or toilet preparations inasmuch as the product in question is not used for beautification or care of skin under normal circumstances. Reference to Ponds India Ltd. (supra) was further made to contend that the petroleum jelly manufactured by a person holding license under the Drugs and Cosmetics Act, 1940 is a ‘drug’ and not ‘cosmetic’.

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[6] In the wake of the said letter dated 24.06.2016, the Dy. Commissioner of Taxes issued a clarification on VAT rate on item-white petroleum jelly on 01.10.2016 [Annexure-VI to the writ petition] reiterating the position the revenue had earlier issued the letter dated 16.02.2016. In the said clarification, no reflection on the points raised by the petitioner No.1 in their letter dated 24.06.2016 is available.

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[7] Dr. A.K. Saraf, learned senior counsel assisted by Mr. S. Chetia, learned counsel appearing for the petitioners has submitted that the decision reflected in the letter dated 16.02.2016 [Annexure-IV to the writ petition] and the clarification dated 01.10.2016 are wholly arbitrary and unreasonable in view of the decision of Ponds India Ltd. (supra). That apart, the revenue has failed to show the product in question falls within a particular entry and that the said product as manufactured by petitioner No.1 and dealt in by the

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petitioner No.2 in the course of interstate trade and commerce for sale in Tripura was cosmetic. Burden of proof is on the taxing authority to demonstrate that a particular class of goods or items is taxable in a manner claimed by them. Mere assertion in this regard is of no avail. If the department wants to classify the goods under a particular entry, different from the one claimed by the assessee the department has to adduce proper evidence and discharge the burden. The revenue has failed to discharge that burden. In this context, the clarification borne in the letter dated 01.10.2016 and the clarification dated 16.02.2016 are absolutely illegal and thus, not tenable in law as it stands poised against the decision of the apex court in Ponds India Ltd. (supra). In regard to the discharge of burden, Dr. Saraf, learned senior counsel has relied on a few decisions of the apex court including Commissioner of Central Excise, Calcutta vs. Sharma Chemical Works , reported in (2003) 5 SCC 60, where the apex court had occasion to observe as under:

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“12. We have heard the parties and considered the submissions made by them. We have also read the opinion of the majority Bench and the minority opinion of the Technical Member. It is a 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 ipso facto 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

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usable. It could 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 to by the customers who use it. The burden of proving that Banphool 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 amnesia blood pressure, insomnia etc. The dosages required are also set out on the label. The product is registered with Drug Controller and is being manufactured under a drug licence.”

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[8] The other reports as relied by Dr. Saraf, learned senior counsel has laid the law in the same manner. Dr. Saraf, learned senior counsel has relied on the following passages of Ponds India Ltd. (supra) :

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2. Whether petroleum jelly is a drug' or a cosmetic' within the meaning of the provisions of U.P. Trade Tax Act, 1948 is the question involved herein.

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**** ****** ********

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35. It is therefore, difficult to agree with Mr. Dwivedi that a medicinal preparation must be one which has the effect of curing a disease. While interpreting an entry in a taxing statute, the Court's role would be to consider the effect thereof, upon considering the same from different angles. Different tests are laid down for interpretation of an entry in a taxing statute namely dictionary meaning, technical meaning, users point of view, popular meaning etc.

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36. 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 is liable to pay at a lower rate.

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**** ****** ********

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[8]

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38. Whether a product would be a drug or a cosmetic sometimes poses a difficult question and, thus, answer thereto may not be easy. For the said purpose, the Court may not only be required to consider the contents thereof, but also the history of the entry, the purpose for which the product is used, the manner in which it has been dealt with under the relevant statute as also the interpretation thereof by the implementing authorities.

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39. Pharmacopeia of India, Third Edition, Volume - 1, page 362 deals with Yellow Soft Paraffin and White Soft Paraffin. White petroleum jelly is included in the term white soft paraffin. Standards therefor had been laid down. We have noticed hereinbefore that the product has specifically been mentioned in Schedule "K" of the Rules. It comes within the purview of the exemption envisaged under Rule 123 of the Rules.

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40. Mr. Dwivedi referred to Wikipedia in respect of white petroleum which describes the product in the following terms :

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„Petroleum jelly, vaseline, petrolatum or soft paraffin is a semi-solid mixture of hydrocarbons (with carbon numbers mainly higher than 25), originally promoted as a topical ointment for its healing properties. Its folkloric medicinal value as a "cure-all" has since been limited by better scientific understanding of appropriate and inappropriate uses (see Uses below). However, it is recognized by the U.S. Food and Drug Administration (FDA) as an approved over-thecounter (OTC) skin protectant and remains widely used in cosmetic skin care. It is commonly referred to as Vaseline as a genericized trademark.‟

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The contention of Mr. Dwivedi is that it is merely a skin protectant and remains widely used in cosmetic skin care and thus it does not have any curative value.

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**** ****** ****** 42. However, as a source of authority, Wikipedia is frequently cited by judges around the world. This is not restricted to India alone. The New York Times reports that beginning in 2004, more than 100 opinion in the States have cited Wikipedia, including 13 from Federal Appeals Courts.**

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**** ****** ****** 44. The said material itself shows that white petroleum jelly helps keep the outside world out and it protects the skin from the effects of weather and exposure. Secondly, it acts like a sealant to help keep the inside world in.**

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45. It is, therefore, accepted that if used as a preventive measure, of course, it would have a curative value. In any event having regard to the definition of drugs, any product which prevents a disorder of human function would also come within the purview of drug.

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**** ****** ********

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47. This Court in Chamanlal Jagjivandas Sheth Vs. State of Maharashtra [(1963) Supp. 1 SCR 344], opined that even absorbent, cotton wool, roller bandages and gauze would be drugs within the meaning of the provisions of the Act, stating :

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„.....The expression „substances‟, therefore, must be something other than medicines but which are used for treatment. The part of the definition which is material for the present case is „substances intended to be used for or in the treatment‟. The appropriate meaning of the expression „substances‟ in the section is „things‟. It cannot be disputed, and indeed it is not disputed, that absorbent cotton wool, roller bandages and gauze are „substances‟ within the meaning of the said expression. If so, the next question is whether they are used for or in "treatment". The said articles are sterilized or otherwise treated to make them disinfectant and then used for surgical dressing; they are essential materials for treatment in surgical cases. Besides being aseptic these articles have to possess those qualities which are utilized in the treatment of diseases. Thus, for instance, in the case of gauze - one of the articles concerned in this appeal - it has to conform to a standard of absorbency in order that it might serve its purpose: otherwise the fluid which oozes is left to accumulate at the site of the wound or sore. The Legislature designedly extended the definition of „drug‟ so as to take in substances which are necessary aids for treating surgical or other cases. The main object of the Act is to prevent sub-standards in drugs, presumably for maintaining high standards of medical treatment. That would certainly be defeated if the necessary concomitants of medical or surgical treatment were allowed to be diluted: the very same evil which the Act intends to eradicate would continue to subsist.‟

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**** ****** ********

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57. Answer to the questions posed therein, therefore, must be found having regard to the facts and circumstances of the cases noticed supra.

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**** ****** ****** 65. Entry 5 relates to „cosmetics‟ and „toilet preparation‟. If the common parlance test is to be applied, vaseline must come within the purview of cosmetic or toilet preparation. With a view to satisfy the requirements of the said definition, it must be held to be used for beautification or care of the skin in the normal circumstances. If the product, in question does not satisfy the aforementioned twin tests, it is difficult to presume any legislative intention in this behalf despite the fact that Vaseline had been deleted from the entry relating to cosmetic and toilet preparation.**

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**** ****** ********

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73. In this case also, the report of the Chemical Examiner is in favour of the assessee. Furthermore, in a case of this nature, where the revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative.

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80. We have noticed hereinbefore that the meaning of „drug‟ is very wide and same has been held to be so in a large number of cases. Balaji (supra) was clearly not applicable whereupon reliance has been placed by the High Court and/or the Tribunal. In our opinion, the impugned judgments, for these reasons, cannot be sustained. They are set aside accordingly.”

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[9] Further, Dr. Saraf, learned senior counsel has submitted that the petitioners have categorically stated about the medical use of the said product in their rejoinder filed on 04.08.2017 inasmuch as the product is used to cure the medical conditions.

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“White Petroleum Jelly is an occlusive agent. When applied on skin, it forms a film on the surface of the skin. This prevents moisture loss from the skin. Unlike traditional moisturizers, which penetrate into the skin and moisturize it, white petroleum jelly works by creating a hydrophobic (water repelling) layer on the skin and does prevents water loss from the skin. Consequently, white petroleum jelly has applications way beyond the

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use of cosmetics. It is used in treating medical skin conditions like eczema and postoperative wounds.

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Apart from above various other dry skin conditions such as Atopic dermatitis, Ichthyosis, Psorasis & Seborrheic Dermatitis are requires treatment by occlusive agents. For this purpose also white petroleum jelly, as a matter of common dermatological practice, is prescribed and applied. This is also applied by Doctors in post operative wound care and management. Therefore, it is clearly a drug.”

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[10] In response, Mr. S. Deb, learned senior counsel assisted by Mr. D.C. Nath, learned Addl. G.A. appearing for the respondents has submitted that the ‘petroleum product’ has been clearly mentioned under Entry 45 of the Schedule II(b) of the TVAT Act and as such, white or yellow petroleum jelly [IP] being a sub-product of petroleum would come under the said Entry 45. Since inclusion of the petroleum product vide Sl. No.144 under Entry 45 of the Schedule II(b) of the TVAT Act is not under challenge, the said product is exigible to VAT at 14.5%. Mr. Deb, learned senior counsel has admitted that the manufacture of white petroleum jelly is regulated by the Drugs and Cosmetics Act, 1940. But for its dispensation, no drug license is required. Thus, it cannot be treated within the State of Tripura as drug and from its common use it is known as the cosmetics. According to Mr. Deb, learned senior counsel petroleum jelly is neither drug nor cosmetic, it is a sub product of petroleum. Having referred to a part of para-16, Mr. Deb, learned senior counsel has contended that the composition of petroleum jelly indicates use of mineral [sub product of petroleum] paraffin wax [sub-product of petroleum] and paraffin

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[micro crystalline wax]. The said product is used for feeling skin healthy and smooth only. Thus, the revenue did not commit any error by charging tax @14.5% treating the white petroleum jelly as sub-product of petroleum.

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[11] It would be apposite for us to refer to the definitions of ‘Cosmetics’, ‘Drug’ and ‘toilet preparations’ as defined under Section 3 (aaa), Section 3(b) and Section 2(k) of Medicinal and Toilet Preparation (Excise Duty) Act, 1955 defines the toilet preparations.

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Section 3(aaa) : “Cosmetic” means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.

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Section 3(b) : „Drug‟ includes:

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(i) 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, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;

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(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;

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(iii) all substances intended for use as components of a drug including empty gelatin capsules; and (iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central

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Government by notification in the Official Gazette, after consultation with the Board;

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2. (k) –„toilet preparation‟ means any preparation which is intended for use in the toilet of the human body or in perfuming apparel of any description, or any substance intended to cleanse, improve or alter the complexion, skin, hair or teeth and includes deodorants and perfumes.”

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[12] White or yellow petroleum jelly apparently is a drug for external use for mitigation and prevention of skin related disease or disorder. In Schedule K appended to the Drugs and Cosmetics Rule, 1945, white or yellow petroleum jelly [IP] [nonperfumed] has clearly been shown as the drug and can only be manufactured under a valid drug manufacturing license. Having regard to the said identity and its medicinal applications, primafacie this court is satisfied that white and yellow petroleum jelly [IP] cannot be treated as a cosmetic but be treated as a drug as the same is manufactured by a person holding license under Drug and Cosmetics Act, 1940 [as decided by the apex court in Ponds India Ltd. (supra)].

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[13] Further, when the petitioners claimed that the said product can only be treated as the drug not as the sub-product of petroleum to bring the same under Entry No.45 of Schedule 2 (b) of the TVAT Act, 2004, it was the bounded duty of the respondents to discharge the burden to prove it by scientific test that the white or yellow petroleum jelly is a sub-product of petroleum. Mere assertion in this regard is of no avail. It has been held by the apex court that there should be material to

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return appropriate finding in that regard. The taxing authority has heavier burden to discharge for disproving the claim of the assesse. Relying on Dunlop India vs. Union of India, reported in (1976) 2 SCC 241, the apex court in Union of India vs. Garware Nylons Ltd., reported in (1996) 10 SCC 41, while dealing with the class of nylon observed that the evidence led in that case conclusively showed that nylon twin manufactured by the assesee is treated as kind of nylon yarn. Hence, it is to be classified accordingly. Since the revenue has failed to establish the contrary, the claim of the assesse has to be accepted [para15]. In Dunlop India (supra) it has been distinctly enunciated as follows:

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“When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause.”

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[14] Having regard to the position of law as enunciated

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by the apex court that white or yellow petroleum jelly is a distinct product covered by the definition of drug as cited above and cannot be held as a sub-product of petroleum to bring it under Entry 45 of the Schedule II(b) of the TVAT Act and hence, the VAT @14.5% cannot be charged for its sale. As consequence thereof, the decision of the revenue borne in the letter dated 01.10.2016 [Annexure-VI to the writ petition] and the clarification dated 16.02.2016 [Annexure-IV to the writ petition] is set aside and quashed. ‘White or Yellow’ petroleum jelly is

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exigible to tax at 5% under Entry 67(i) of the Schedule II(a) of the TVAT Act. The tax thus be assessed by the revenue. While making the above observations, we have taken care of the notification under No.F.I-11(62)-TAX/VAT/2014 dated 24.03.2015 [Annexure-II to the writ petition] whereby the following expression has been substituted in lieu of ‘ Under entry No.67(i) of Schedule II(a), the expressions, „Medicine and drugs including vaccines, syringes, dressing, medicated ointment produced under drug license, light liquid paraffin of IP grade, Ayurvedic, Homeopathic and Unani medicines‟ :

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“Medicine and drugs (including Ayurvedic, Siddha, Unani, Spirituous medical drugs and Homeopathic drugs) including tonics, food supplements, appetizers, vaccines, syringes, dressing, medicated ointment produced under drug license, light liquid paraffin of IP grade, but does not include the products capable of being used as cosmetics and toilet preparations including toothpaste, toothpowder, toilet articles, soaps and hair oil.”

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[15] In terms of the above, this writ petition stands allowed to the extent as indicated above.

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JUDGE CHIEF JUSTICE

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Sujay

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Hindustan Unilever Ltd. and Anr. v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

Hindustan Unilever Ltd. and Anr. v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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