Back
2010 (1) GCD 562 (Guj)
Hon’ble Mr. Justice Jayant Patel
Unicure Remedies Pvt. Ltd. & Ors.
Versus
Commissioner & Anr.
Special Civil Application No. 2864 of 2003—Decided on 15/01/2009
Constitution of India, 1950 — Article 226 — Octroi chargeable — Product is ‘Vital Z’ — Held, it is drug chargeable as per Entry 37-A — And not as food product chargeable under Entry 30-A — Held, the classification of product under Central Excise Act or the tariff can not be directed equated with the classification made for levying of Octroi.
Held :
The classification of the product under Central Excise Act or the tariff cannot be directly equated with the classification made for levying of the octroi. It is only in the case of any genuine doubt, the reference may be extracted for understanding the composition of such product. Merely because a product is classified under the Sugar & Sugar Confectionery under Central Excise Tariff Act, it cannot be said that such would fall as a food product in every case. [Para 8]
Further, Entry No. 37A expressly provides for inclusion of all type of drugs and it also specifies the roots to be used for drugs and others. Therefore, whether a particular product can be said as drug or not and is being marketed as the product of drug or not, can be considered on the basis of the provisions of Drugs and Cosmetics Act and also the marketability of such product as being known to the public at large. As stated above, the competent authority under the Drugs and Cosmetics Act has duly certified the product as a drug. Not only that, but for manufacturing of such product, the license is also obtained under the Drugs & Cosmetics Act, 1940. The affidavit is filed by Senior Drug Inspector on behalf of the respondent No. 2, viz. Commissioner of Food and Drugs Control Administration and in the said affidavit, in Paras 4 & 5, there is a reference to the composition of the product and the conclusive opinion is as under:
“It is very clear that Vital-Z is a drug.” [Para 9]
Under these circumstances, it deserves to be concluded that the product Vital-Z would fall under Entry No. 37A for chargeability of the octroi by the respondent Corporation and it would not fall under Entry No. 30A as a food product. [Para 12]
Law Laid Down :
The classification of the product under Central Excise Act can not be directly equated with the classification made for levying of octroi.
Jayant Patel, J.—The short facts of the case appears to be that the petitioner No. 1 is a manufacturing company and the other petitioners are the authorised Stockists/Distributors of a product known as “Vital-Z” (hereinafter referred to as “the product/product in question”). As per the petitioners, the said product is a drug which may be prescribed by a Doctor for different use for medicinal purpose, therefore, octroi chargeable should be at the rate of Rs. 1 per ad voleram. Whereas, the officers of the respondent Corporation insisted for collection of the octroi at the rate of Rs. 3 per ad voleram treating the said product as food product. It is under these circumstances, the petitioners are constrained to approach before this Court by way of the present petition.
2. Heard Mr. KD Gandhi, learned Counsel for the petitioners, Mr. Chhaya for the respondent No. 1 and Mr.Oza, learned AGP for respondent No. 2.
3. The only question to be considered is as to whether the Corporation would be entitled to charge octroi at the rate of Rs. 3 per ad voleram treating the product as falling under Entry No. 30A or the octroi chargeable is at the rate of Rs. 1 per ad voleram under Entry No. 37A.
4. It appears from the record that it is an admitted position that the product in question is Vital-Z. If it is considered as a drug, it would fall under Entry No. 37A. However, if the product is treated as food item, it may fall under Entry No. 30A. The aforesaid both the Entries, viz. Entry Nos. 30A and 37A, reads as under:
Sr. No. Item No.Name and description of the article Rate Rs. P. Per
@ 64 30A Foodstuffs and food provisions including
cheese, cocoa, biscuits, jams, marmalades,
jelly, pickles, condensed milk, chocolates,
confectionery, tinned fruits and vegetables,
tinned food, tinned meat and fish, beverages
Sr. No. Item No.Name and description of the article Rate Rs. P. Per
and juices of all kinds, milk food preserved
provision of all kinds, baking and curry
powder, ham and bacon, cakes, sweetmeats
and culinary and flavouring essences. 3.00 Pc.
Adv.
.... .... .... ... ....
@ 86 37A Drugs and medicines of all kinds including
medical herbs, ayurvedic moorabbas used
for medical purposes only, honey and
ayurvedic natural herbs, substances used
for medical purposes. 1.50 Pc.
Adv.
5. As per the petitioners, the product is being manufactured by the petitioner No. 1 Company and there is a Certificate produced of the Assistant Commissioner, Food & Drug Control Administration at Annexure-C dated 07.08.1999 and the details of the product are comprising of dextrose, sucrose, zinc sulphate, ascorbic acid, etc. In the very certificate, it has been certified as under:
“The above product is a drug product manufactured under a drug license. It is not a food product”
The aforesaid Certificate issued by the Drug Authority apparently goes to show that the product in question is a drug product to be used for medicinal purposes.
6. The attempt on the part of the respondent Corporation to justify the collection of octroi at the rate of Rs. 3 per ad voleram is on the premise that the said product is classified under Clause 17.2 of the Central Excise Classification which pertains to food and food preparations. Therefore, it was also sub
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
