Subhasis Talapatra, J. - (1.) BY this revision petition under section 72 of the Tripura Value Added Tax Act, 2004 (hereinafter referred to as "the petition"), the order dated October 21, 2011 as passed in Rev. Case No. 60 of 2011 and order dated June 23, 2011 as passed by the Commissioner of Taxes, the revisional authority has been challenged. By the said revision petition filed under section 72 of the Tripura Value Added Tax Act, 2004 (hereinafter referred to as "the TVAT Act"), the order of the Seizure Case No. 1549/CRB/10 -11, dated March 25, 2011 was seriously challenged holding that there was no misrepresentation as alleged by the Superintendent of Taxes, Churaibari, the seizing authority. The essential facts as required for appreciation of the challenge are noticed hereunder: The officer -in -charge, Churaibari check -post, seized a consignment of the petitioner containing "Betonin AST Tonic" vide seizure Case No. 1549/CRB/2010 -11 on March 25, 2011. The seizure was made on the ground that the petitioner had misdeclared seized goods as "H.L. medicine" attracting tax at five per cent, but on physical verification during the search at Churaibari Check -post it was found by the seizing authority that the item is ''Appetite Tonic" which is taxable at 13.5 per cent, as per entry No. 183 under Schedule II(b). A total quantity of seized goods was 86 C/Bs having value of Rs. 1,30,000. Being aggrieved by the said order of seizure dated March 25, 2011, the petitioner filed for revision under section 70(2) of the TVAT Act, being Revision Case No. 8 of 2011. In the said revision petition, the previous order dated April 29, 2011 (annexure P/6) and the report of the Deputy Drugs Controller dated March 17, 2011 passed in a previous proceeding were heavily relied by the petitioner and claimed that there was no mis -declaration inasmuch as the Deputy Drugs Controller had categorised the said "Betonin AST Tonic" as "drugs" under the Drugs and Cosmetics Act, 1940 and therefore that product will not be covered by entry No. 183 of Schedule H(b) and also would not carry tax at 13.5 per cent. In short, in the revision petition, the petitioner claimed that he held the licence under the Drugs and Cosmetics Act, 1940 and since the seized materials being the scheduled drug fall under entry No. 67(i) of Schedule n(a) of the TVAT Act, it would carry VAT at four per cent, (now five per cent.).
(2.) THE revisional authority, however, did not find any substance in the contention of the petitioner and on assigning the reasons as extracted hereunder, rejected the revision petition by the order dated October 21, 2011 in Rev. Case No. 60 of 2011. "5.... Entry No. 67(i) of Schedule II(a) taxable at five per cent: 'Medicine and drugs including vaccine, syringes, dressing medicated ointment produced under drug licence, light liquid paraffin of IP grade, ayurvedic, homeopathic and unani medicines'. Entry No. 183 of Schedule II(b) taxable at 13.5 per cent.: 'Vegetable, mineral and other preparations, tonics, food supplements, appetizers, dietical foods and all other preparations for human consumption in liquid, pill, powder forms, whether prepared according to pharmacopial standards of otherwise, other than those specified elsewhere in this Schedule'. 6. By reading above, one can easily see that as per entry No. 183 Schedule II(b), the tonic is taxable at 13.5 per cent. The report of the Deputy Director Controller, Government of Tripura, Agartala only declared the product as drug but does not deny it to be tonic. At the same time by virtue of being drug as per definition of 'drug' under section 3 of the Drugs and Cosmetics Act, 1940 the seized product does not cease to be medicine. 7. Section 74(1) of the Tripura Value Added Tax Act, 2004 empowers the revisional authority at any time within three years from the date of any order passed by it, to rectify any error apparent on the face of the record. The order of the revisional authority (the then Commissioner of Taxes, Government of Tripura, Agartala) in Rev. case No. 8 of 2011 was based on only the report of Deputy Drug Controller and it did not consider the provision of law in its perspective. The contents of entry No. 183 remove any doubt or confusion in classifying the seized product under Schedule II(b) taxable at 13.5 per cent instead of Schedule II(a) taxable at five per cent. Therefore, the conclusions drawn by this court in Rev. Case No. 8 of 2011 dated May 3, 2011. 8. The Tripura VAT Act, 2004 and the Tripura VAT Rules, 2005 do not define the term 'medicines' and 'drugs' appearing in the entry No. 67(1) of Schedule II(a) taxable at five per cent. Therefore, the meaning of the drug as given in section 3 of the Drugs and Cosmetics Act, 1940 cannot be taken as sole definition for the purpose of the classification and taxation of the product under the TVAT Act, 2004. Moreover, it is an established law that when two interpretations or explanations of a particular point are possible and one such interpretation has been explicitly mentioned in the statute and other interpretation is only an inference from some other statute, then the interpretation flowing out of the statute book governing the action of the adjudicator will have primacy over the other. In the present case, entry No. 183 of Schedule II(b) clearly included the tonics irrespective of its preparation method but entry 67(i) of Schedule only mentions drug, whose meaning and scope has not been even defined in the tax law. Therefore, in such case the contents of entry No. 183 will be considered over the claim made under entry No. 67(i) of Schedule II(a)." It is apparent that the basis of rejection was that while two interpretations or explanations of a particular point are possible and the one has been explicitly mentioned in the tax statute will be preferred to the other interpretation which was derived on taking aid from the other statute. Interpretation as projected by the revisional authority is claimed to emanate from the TVAT Act and the Rules made thereunder and hence that would have primacy over any other laboured interpretation. However, no reference to a definite provision of the statute has been made in the impugned order. What surprises more that the revisional authority (the Commissioner of Taxes) in para 9 of the impugned order as excerpted hereinbefore has relegated the order dated May 3, 2011 of his predecessor as passed in Revision Case No. 8 of 2011 for having no precedental value. Ultimately, the reasons that emerged therefrom is that as the petitioner did not mention the product as "tonic" in the invoice which was so depicted in the product label, the petitioner had tried to hide the identity of the product deliberately. On such basis, the seizure on the ground of misdeclaration as effected by the order dated March 25, 2011 was held to be good. By this petition, those findings of the revisional authority have been put under challenge.
(3.) MR . S. Deb, learned senior counsel appearing for the petitioner, would seriously contend that there was no misdeclaration as the petitioner in the invoice had categorically declared the products as "Betonin AST Tonic", which falls under the category of drug. To buttress his contention further, Mr. Deb, learned senior counsel has referred to a previous decision of the revisional authority in Rev. Case No. 8 of 2011 between the same parties which is reflected in the order dated April 29, 2011 (annexure P6 to this petition). Profitably the content of the said order is excerpted hereunder: "April 29, 2011. The learned advocate, Shri Sanjoy Saha is present on behalf of the petitioner. Shri B. Deb, P.O. is present. Report bearing Nos. 7997 -98 dated March 17, 2011 of the Deputy Drug Controller is perused wherefrom it appears that the seized goods, i.e., 'Betonin' is a drug. Learned advocate Shri Saha pleaded that as the seized goods is drug which is taxable at four per cent, and accordingly it was properly declared as H. L. medicine, so that ground for seizure is not justified. Heard both parties. After hearing and on perusal of the records, it appears that the goods was properly declared and the ground for seizure is not justified. Accordingly, it is ordered that S. T. Churaibari would release the seized goods to the petitioner. Thus the case is disposed of.";