A.F.R.

THE HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:126556 Court No. 40 SALES/TRADE TAX REVISION No. – 274 of 2018 THE COMMISSIONER, COMMERCIAL TAX v.

M/S EMAMI LTD.

With SALES/TRADE TAX REVISION No. – 251 of 2019 THE COMMISSIONER, COMMERCIAL TAX, U.P., LUCKNOW v.

M/S EMAMI LTD.

With SALES/TRADE TAX REVISION No. – 252 of 2019 THE COMMISSIONER, COMMERCIAL TAX, U.P., LUCKNOW v.

M/S EMAMI LTD.

With SALES/TRADE TAX REVISION No. – 33 of 2021 THE COMMISSIONER, COMMERCIAL TAX, U.P., LUCKNOW v.

S/S EMAMI LTD.

With SALES/TRADE TAX REVISION No. – 10 of 2023 THE COMMISSIONER, COMMERCIAL TAX, U.P., LUCKNOW v.

S/S EMAMI LTD.

With SALES/TRADE TAX REVISION No. – 98 of 2023 THE COMMISSIONER, COMMERCIAL TAX, U.P., LUCKNOW v.

S/S EMAMI LTD.

For the Revisionist : Mr. Manish Goyal, Additional Advocate General assisted by Mr. Bipin Kumar Pandey, Additional Chief Standing Counsel For the Respondent : Mr. S.K. Bagaria, Senior Advocate assisted by Mr.

Kumar Ajit Singh and Mr. Rahul Agarwal, Advocates Last heard on: May 23, 2024 Judgement on: August 6, 2024 HON’BLE SHEKHAR B. SARAF, J.

1. The instant revision petitions have been preferred by The Commissioner, Commercial Tax (hereinafter referred to as the ‘Revisionist’) under Section 58 of the Uttar Pradesh Value Added Tax, 2008 (hereinafter referred to as ‘the Act’) against the orders dated June 8, 2018, October 8, 2018, October 8, 2018, July 17, 2020, November 1, 2022, and April 28, 2023, passed by the Commercial Tax Tribunal, U.P., Lucknow (hereinafter referred to as the ‘Tribunal’). All the revision petitions involve the common question of law as to whether, under the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in holding that Boro-Plus Antiseptic Cream (hereinafter referred to as the ‘BPAC’) is a medicated ointment and covered under entry no. 41 of Schedule II Part (A).

2. As the issue involved in all the revision petitions is common, the said petitions are being decided by a common order.

3. The factual matrix in all the revision applications is also similar. Accordingly, I have outlined the factual matrix of only one case (STRE No.

274 of 2018) below:

a. The instant revision petition pertains to the rate of tax to be levied on the sale of BPAC.

b. The Assessing Authority in the instant case had levied tax on BPAC at the rate of 14% after categorising it as an ‘unclassified item’.

c. Being aggrieved by the aforesaid assessment order passed by the Assessing Authority, M/s Emami Ltd. (hereinafter referred to as the ‘Respondent’) preferred an appeal before the First Appellate Authority which was dismissed vide order dated July

26, 2016.

d. The Respondent then filed an appeal before the Tribunal which was allowed vide order dated June 8, 2018. The Tribunal held that BPAC falls within the category of ‘medicated ointment’ and hence is liable to be taxed at the rate of 5% under the heading ‘drugs and medicines’ in Entry 41 Schedule II.

e. Hence, the instant revision petition has been preferred by the Revisionist against the order dated June 8, 2018, passed by the Tribunal.

CONTENTIONS BY THE REVISIONIST

4. Learned counsel appearing on behalf of the Revisionist has made the following submissions:

a. BPAC has been sold by the Respondent for a long time, and prior to 2018, it has always been assessed as a cosmetic by this Court. Reliance is placed upon the judgments of this Court in M/s. Balaji Agency -v- Commissioner of Sales Tax, U.P. reported in 1994 (19)-STJ-150, M/s. Paras Pharmaceuticals Limited -v- Commissioner, Trade Tax, U.P. Lucknow reported in 2007-NTN-(Vol-33)-313, and Commissioner Commercial Taxes U.P. -v- Singhal Bros. Hathras, reported in 2006 (43) STR 579 b. The instant matter relates to the assessment year 2012-13. With effect from October 11, 2012, antiseptic cream has been excluded from the entry of ‘drug and medicines’ in Entry 41 Schedule II. Therefore, it is liable to be classified and taxed as an ‘unclassified item’.

c. This Court on a pr