MARICO INDUSTRIES LTD. Vs. STATE OF M.P.

JUDGEMENT

(1.) By this writ petition under Articles 226 and 227 of Constitution of India, the petitioner Marico Industries Ltd. has challenged the order dated 05.01.2004 passed by Additional Commissioner Commercial Tax in revision case No.80/03/Ind/Entry Tax.

(2.) Brief facts giving rise to the petition are that the petitioner is a manufacturer of hair oil, edible oil, Mediker, Starch and other products for sale in M.P. and is the registered dealer under M.P. Commercial Tax Act 1994 (Originally M.P.G. Sales Tax Act), and being a dealer is liable to be assessed under the M.P. Entry Tax Act 1976 (hereinafter called E.T. Act) for brevity. The assessment years for E.T. Act for the products 'Mediker' and 'Starch' in the petition pertains to period 01.04.1999 to 31.03.2000 and for the same relevant period under the Commercial Tax Act 1994 (hereinafter called C.T. Act) for brevity, 'Mediker' was an item chargeable (including surcharge) @6.9% upto December 1999 and @9.2% from January 2000 onwards, under the item 'drugs and medicine' under Schedule II part VII. However, if the product is treated as Shampoo i.e. toilet or cosmetics then it is chargeable @13.08% and Counsel urged that such a classification is not all attracted in the present case, since 'Mediker' is an anti-lice treatment product.

(3.) Counsel for the petitioner contented that the petitioner has regularly filed return from time to time under both the Acts and paid the taxes as required and it is also not in dispute petitioner is a 'Dealer' liable to pay tax under Section 3(1)(a) of E.T. Act only if the goods so brought in are items shown in schedule I or II of the Act, however under the schedules I and II of the E.T. Act 'medicine and drugs' and 'starch' are not mentioned and these products are brought from outside Madhya Pradesh but they are not for sale and also since they do not find mention in the schedules they do not attract the provisions of the E.T. Act. Hence, the petitioner filed an application for exemption. It was vehemently contended by the Counsel for the petitioner also that 'Mediker' is the medicine and drug in Commercial Tax Act and 'Starch' as such is 'Starch' and not a chemical. In the assessment proceedings by respondent No.3 Assistant Commercial Tax Officer agreed with the contention of the Counsel for the petitioner. However, the contention was not acceptable under the Entry Tax Act and vide Annexure P/2 respondent No.3 has wrongly disallowed the claim for exemption under the E.T. Act. Being aggrieved by the order the petitioner had also filed revision before respondent No.2 Additional Commissioner, Commercial Tax and the respondent No.2 upheld the order of respondent No.3 vide Annexure P/1. The respondent No.2, however, treated as Mediker as item of 'drugs and medicine' chargeable at @6.9% upto December 1999 and @9.2% for 'Starch' as 'Starch' and not as chemical under Commercial Tax Act vide Annexure P/5 and being aggrieved the petitioner has filed the present petition.