The judgment establishes the importance of the common parlance test and the consideration of ingredients and authoritative texts on ayurveda in determining the classification of products under the U.P. Trade Tax Act, 1948.

Sunil Ambwani J. - Heard learned counsel for the applicant and learned Standing Counsel for the department.

This trade tax revision under section 11 of the U.P. Trade Tax Act, 1948 arises out of order of Trade Tax Tribunal dated January 2, 2007 by which the Second Appeal Nos. 941 of 2003 for the assessment year 1998-99; 193 of 2003 for the assessment year 1999-2000 and 593 of 2003 for the assessment year 2000-01, were allowed with the findings that "Boro Soft" cream manufactured by the assessee at Gujarat and sold in Uttar Pradesh after receiving by stock transfer is to be taxed under the entry "all kinds of cosmetics" at 15 per cent and not as "ayurvedic medicine" at eight per cent.

The assessing authority on remand found that "Boro Soft" is a cosmetic and will fall within the entry of "all kinds of cosmetics and preparation" under notification dated September 7, 1991. The Joint Commissioner (Appeal), however, found that "Boro Soft" is used as medicine and that the Joint Commissioner (Drugs), Foods and Drugs Control Administration, Gujarat, has certified that the "Boro Soft" cream is an ayurvedic drug. The Tribunal allowed the second appeals filed by the department.

In fact, the matter is squarely covered by judgment of this court in Balaji Agency, Gorakhpur v. Commissioner of Sales Tax [1994] UPTC 184 in which it was held in para 6 as follows :

"6 ... Every cosmetic usually has some medicinal properties for the care of the skin, teeth, hair, etc., and simply because they have some medicinal properties, they cannot be treated as medicines. Whether a thing is cosmetic or medicine has to depend on its general use and such creams are generally used for skin care and not for treatment of any disease of skin. I, therefore, do not find any force in the contention that the Tribunal was in error in holding these items to be cosmetics."

It is submitted that "Boro Soft" ayurvedic antiseptic cream is manufactured under Mfg. Licence No. GA/551 dated December 11, 1996 and is certified as an "ayurvedic product" by the Joint Commissioner (Drugs), Food and Drugs Control Administration. The certificate of registration of trade marks registers "Boro Soft" as antiseptic cream for soft smooth skin and it is used for treatment of chapped skin, cuts, wounds, minor burns, and dry skin diseases. The wrapper gives the composition of the cream as follows :

------------------------------------------------------------ "Composition : each 100 g. contains ------------------------------------------------------------ Aloevera Ex ... AB 1.00 ------------------------------------------------------------ Tankan Amla ... AB 1.50 ------------------------------------------------------------ Sasai Bhasma ... AB 1.80 ------------------------------------------------------------ Cocobutter ... 1.00 ------------------------------------------------------------ Surasar (Alcohol) ... .70 ------------------------------------------------------------ Cream Base ... .05" ------------------------------------------------------------

The wrapper further declares that the cream is an ayurvedic medicine for external use only. The learned counsel for the applicant has relied upon judgments in Commissioner of Central Excise v. Sharma Chemical Works [2003] 132 STC 251 (SC); [2004] 24 NTN 28 (SC), Union of India v. G.D. Pharmaceutical Limited [2000] 118 STC 19 (SC), and a judgment of the Madhya Pradesh High Court in Commissioner of Commercial Tax, M.P. v. Dawar Brothers, Indore [1998] 111 STC 319; [1988] UPTC 1211 in support of his submission.

Shri B. K. Pandey, the learned Standing Counsel for the Department, however, has relied upon Puma Ayurvedic Herbal (P.) Ltd. v. Commissioner of Central Excise, Nagpur [2006] 145 STC 200 (SC); [2006] 196 ELT 3 (SC) in