2025:BHC-OS:24963-DB

zMayur

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SALES TAX REFERENCE NO. 21 OF 2010 (Sr No. 21)

The Commissioner Of Sales Tax, Mumbai ...Applicant

Versus

Park Devis (India) Ltd. ...Respondent

AND

SALES TAX REFERENCE NO. 23 OF 2010 (Sr No. 22)

The Commissioner Of Sales Tax, Mumbai ...Applicant

Versus

Park Devis (India) Ltd. ...Respondent

____________________________________________________________ Ms. Jyoti Chavan, Addl. G. P. a/w Mr. Himanshu Takke, for

Applicants.

____________________________________________________________

CORAM : M.S. Sonak &

Advait M. Sethna, JJ.

DATED : 11 December 2025

P.C.:-

1. Heard Ms. Chavan and Mr. Takke, learned counsel for the

applicant.

2. The learned counsel for the Applicant states that a common judgment and order can dispose of both these references by treating

STR No. 21 of 2010 as the lead matter.

3. The respondent, though, is neither present nor represented.

This is a reference of the year 2010 and therefore, can brook no further delay. By this reference, the Tribunal has referred the following substantial questions for the determination of this Court:-

“A. Whether on the facts and the circumstances of the case, the Tribunal was justified in taxing the sales of "Listerine Mouth Wash" @ 4% as against 15% levied in the appeal proceeding, on the basis of order granting prospective effect in Miscellaneous Application No.171 of 2001 filed by the opponent in spite of the fact that the order in Miscellaneous Application No.171 of 2001 was not accepted by the revenue and consequential legal steps were being taken ?"

B. Whether on the facts and the circumstances of the case and in the event of question of law arising from the order passed in Miscellaneous Application No.171 of 2001 in Appeal No.158 of 1995 dated 21.6.1997 being decided in favour of the revenue, is the decision of the Tribunal taxing the sales of "Listerine Mouth Wash" @ 4 percent legal ?"

C. Whether on the facts and the circumstances of the case, was the Tribunal justified in observing that the matter was 'fairly conceded' and 'no objection was raised' inspite of the fact that the opponent objected to the granting of relief in view of legal steps being taken' against the order passed in Miscellaneous Application No.171 of 2001 ?"

4. The Tribunal has succinctly set out the statement of facts in which the above-referred questions arise in its judgment and order dated 25 January 2007. Therefore, the same are not repeated in this judgment and order.

5. The Tribunal agreed with the Revenue that Listerine Mouth Wash must be classified under Schedule Entry C-II-86 and subjected to the 15% tax rate, rather than the 14% rate, by being covered under Schedule Entry C-I-24. However, by following the order disposing of Miscellaneous Application No. 171 of 2001 in another appeal i.e. Appeal No. 158 of 1995 decided on 21 June 1997, as held that the tax at the rate of 15% must be levied only prospectively that is from the date of the Tribunal’s order and not retrospectively.

6. Aggrieved by this, the Revenue has sought and obtained the present reference.

7. Ms. Chavan and Mr. Takke pointed out that the order dated 28 February 2002 disposing of Miscellaneous Application No. 171 of 2001 in Appeal No. 158 of 1995 was challenged by the Revenue before this Court vide Writ Petition No. 968 of 2003. This was disposed of by the judgment and order dated 25 September 2009 and is now reported as Commissioner of Sales Tax Vs. Maharashtra Sales Tax Tribunal and Ors1.

8. This Court did interfere with the impugned order inter alia on the ground of non-consideration of the limitation plea. However, this Court noted that Section 52 of the Sales Tax Act confers power on the Commissioner to decide the matters referred to therein, including the rate of tax payable. Further, Section 52(2) provides that the Commissioner may direct that his order shall not affect the liability of any person in respect of any sale or purchase effected prior to t