KARKHANA ZINDA TILISMATH Vs. STATE OF ANDHRA PRADESH
LAWS(ST)-2010-2-2
SALES TAX TRIBUNAL
Decided on February 05,2010

Karkhana Zinda Tilismath Appellant
VERSUS
STATE OF ANDHRA PRADESH Respondents

JUDGEMENT

J. Shyam Sundar Rao, Chairman - (1.) THIS is an appeal filed against the revisional orders of Additional Commissioner (CT) (Legal), O/o the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad in CCTs Ref.No.L.III(1)/825/2003 -1, dated 21 -12 -2004. The appellant disputed rate of tax on a turnover of Rs. 1,05,36,603/ -. The appellant is M/s. Karkhana Zinda Tilismath, Amberpet, Hyderabad. It is on the rolls of Commercial Tax Officer, Vidyanagar Circle, Hyderabad. The Assessing Authority passed final assessment order for the assessment year 1999 -2000 by proceedings dated 28 -09 -2000 under the provisions of APGST Act, 1957. Aggrieved by the same, appellant preferred appeal before the Appellate Deputy Commissioner (CT), Secunderabad Division, the ADC by his order dated 22 -01 -2001 allowed the appeal.
(2.) THE Additional Commissioner (CT) (Legal), Andhra Pradesh, Hyderabad by virtue of powers conferred under Section 20(2) of the APGST Act, having observed that the order passed by the Appellate Deputy Commissioner is prejudicial to the interests of revenue, issued pre -revision show cause notice calling for the objections of the assessee proposing to restore the order passed by the Commercial Tax Officer. The assessee filed its objections. The objections, however, were rejected and the proposed revision was confirmed. Aggrieved by the same, the present appeal is preferred before this Tribunal. The Revisional Authority erred in revising the well considered order of the Appellate Authority. The Revisional Authority erred in not coming to the conclusion that Farooky Powder manufactured by the appellant is purely a Unani Medicinal preparation for treating the gums and mouth ailments but not as a cosmetic preparation for use for beautification of a person. The Revisional Authority erred in treating the Farooky Powder (Unani medicine) as tooth -powder for the purpose of revision. The Revisional Authority erred in not applying the users test method in a situation where an item falling under two entries should adopt that method which is favourable to the assessee. The Revisional Authority erred in not considering the well settled principles laid down by the High Courts and Supreme Court. The observation of the Revisional Authority that Farooky Powder would fall under Entry 36 of the First Schedule to the APGST Act is not correct. The Revisional Authority erred in coming to the conclusion that even if the product is manufactured under Drug Licence issued by the appropriate authorities and if they are in the nature of Tooth powder, they cannot fit in within the scope of the amended Entry 37 of the First Schedule.
(3.) AT the time of hearing, the learned counsel for the appellant contended that the appreciation of the Commercial Tax Officer as well as the Revisional Authority that Farooky Powder dealt by the appellant would fall under exclusion clause of Entry 37 of the First Schedule to levy tax at 20%. It is argued that 20% is leviable on cosmetic powders but not the powder manufactured by the appellant since it is certified to be medicinal product by the Unani Board and the same was also certified to be medicinal product to be Unani Medicine by the Central Excise Authorities. It is argued that the ingredients of the powder manufactured by the appellant are meant for treating the gums of the teeth and other tooth ailments. The powder is not meant for beautification of the teeth or cleaning the teeth but it is mainly meant for cure of tooth/mouth ailment. Reliance has been placed by the counsel for the appellant on the decision rendered by this Tribunal in between M/s. Heinz India Pvt. Ltd., Secunderabad Vs. State of Andhra Pradesh reported in : (2008) 47 APSTJ 1.;


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