ASHWINI HOMEO PHARMACY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE appellant is M/s. Ashwini Homeo Pharmacy, Moosapet, Hyderabad. It is on the rolls of Commercial Tax Officer, Hydernagar Circle, Hyderabad. The Commercial Tax Officer passed final assessment orders for the assessment year 1998 -99 by his order dated 15 -01 -2002 under APGST Act. The appellant deals in manufacture of Homeo Hair Oil The Commercial Tax Officer subjected the turnover of first sales of Homeo Hair Oil to 20% treating the product as cosmetic falling under Entry 36 of First Schedule. Aggrieved by the same, the appellant filed appeal before the Appellate Deputy Commissioner (CT)., contending that the said product would fall under Entry 37 of First Schedule and that it is a medicine but the appeal was dismissed, Aggrieved by the same, the present appeal is preferred. In the appeal grounds it has been contended as follows:

(2.) POINT : It has been argued by the Advocate appearing for the appellant that the High Court of Andhra Pradesh in their own case in Special Appeal No. 8 & 10/2000 held that Aswini Homeo Hair Oil is a drug exigible to tax at 10%. On the other hand, the State Representative contends that the above judgment was rendered by the High Court of Andhra Pradesh prior to the amendment to Entry 37 of First Schedule and hence the said case is not applicable.

(3.) A reading of the above decision indicates that sufficient material had been produced by the appellant showing that Aswini Homeo Hair Oil is a drug but not a cosmetic. It is admitted fact that the appellant obtained drug licence as required under Drugs and Cosmetics Act, 1940 and it contains Arnica Mount Q, Cantharis Q, Cinchona Q and Pilocarpine Q and the ingredients of this oil are found in the Homeopathic Pharmacopoeia. In view of these ingredients, the same shall be construed to be drug in terms of Entry 37 of First Schedule to the Act. The only point urged by the State Representative is that at present the product dealt by the appellant will fall under the exclusion clause in Entry 37. It is his contention that when it falls under exclusion clause of Entry 37 it would fall under Entry 36 exigible to tax at 20%. Entry 36 of First Schedule deals with Cosmetics and toilet preparations whether medicated or otherwise including scents, perfumes, face powders, talcum powders, hair -tonics hair -oils other than coconut oil, hair lotions, hair dyes, hair creams, shampoo in any form, all kinds of face and body creams and snows, pomades, depilatories, tooth -powder, toothpaste, tooth brashes and shaving creams, after shave lotion, personal deodorants or sprays, room deodorizers or fresheners, Entry 37 deals with Drugs and medicines, whether patent or property, as defined under Section 3 of Drags and Medicines Act, 1940 but not including -