KOTHARI, J. - (1.) THE interesting question of law arises in these cases is whether "parachute 100% coconut oil" sold by the assessee during the relevant period would be taxable @ 4% under entry "all kinds of edible oil including edible coconut oil whether refined or filtered" or whether it would be taxable @ 12% under entry relating to "perfumery" which includes, "all types of hair oils including refined or filtered coconut oil". This controversy arose on account of notification dated 15. 3. 1996 (F. 4 (69) FD/tax Divn. /95-32 dated 15. 3. 1996, S. O. 267 (S. No. 1037) of J. K. Jain's book part II ). THE relevant two competing entries for consideration of this court are reproduced below for ready reference: " 50. All kinds of edible oils including edible cocount oil whether refined or filtered. 72. Perfumery (excluding agarbattis, dhoop and loban), cosmetics, shampoos, tooth pastes and tooth powders (manjan), comb, brushes, all types of hair oils including refined or filtered coconut oil, shaving articles but excluding safety razors and blades: . . . 12%
(2.) AFTER hearing the arguments at length of learned counsel at bar, it appears that this controversy for the year 1995-96 in question is only for a period of 15 days because said notification came w. e. f. 15. 3. 1996 and the earlier notification for assessment year which governed the taxability is notification dated 27. 3. 1995 (S. No. 968 ). Here the relevant comparative entries read like this: 51. All kinds of Edible Oils including edible coconut oil whether refined or filtered. 6% 74. Perfumery (excluding agarbattis, dhoop and loban), cosmetics, shampoos, tooth pastes and tooth powders (Manjan), Combs, Brushes, all types of Hair oils, shaving articles but excluding safety razors and blades. " 12% The difference which the notification dated 15. 3. 1996 made with regard to this commodity was the inclusion of words "including refined or filtered coconut oil" with the words "all types of hair oils" in entry 72 which words were not available in previous entry 74 which mentions only the words "all types of hair oils" having taxability of 12%; whereas entry 51 of the previous notification dated 27. 3. 1995 and entry 50 of the notification dt. 15. 3. 1996 continued to remain identical. Mr. R. B. Mathur, learned Sr. Standing Counsel appearing for petitioner-revenue contended that the amendment in notification dt. 15. 3. 1996 by including of words including refined or filtered coconut oil" in entry 72 cannot be said to be redundant by the legislature and, therefore, with the inclusion of these words in entry 72, the product in question sold by the assessee during the relevant year namely "parachute 100% pure coconut oil" should be held to be the taxable @ 12% and not @4% as contended by learned counsel appearing for the assessee and as taxed by the assessee himself @4% during the said period. Learned counsel appearing for petitioner-revenue further submitted that not only the said cocount oil which is sold in a much costlier range than the normal edible oil but is also sold in a small packings like that of 50 ml, 100 ml, 200 ml or even in 500 ml indicates that said oil is pre-dominantly used by a common man as hair oil and not as edible oil used for cooking purpose, and therefore, mere description on the packing of said product as 100% pure edible oil by the assessee is not sufficient to hold applying the common parlance test, which is the well settled principle of interpretation in sales tax laws, that such product should be taxed @ 4% only. These contentions are vehemently opposed by Mr. T. C. Jain, learned counsel appearing for respondent-assessee. He firstly contends that though the burden of proof lies upon the revenue i. e. Assessing Authority to show that product in question is pre- dominantly used as hair oil and not as edible oil and the Assessing Authority has not brought any material on record to discharge such burden of proof. As against this, assessee produced over-whelming evidence before the Assessing Authority to establish that the product in question is an edible oil and is used as such and, therefore, same cannot be taxed @ 12% under entry 72 despite amendment by the notification dated 15. 3. 1996. Elaborating his argument, Mr. Jain, counsel appearing for assessee submitted that mere packing of the goods in smaller packings cannot be an indicative factor of the said edible oil to be taken as hair oil because not only such smaller packings are permitted as per Third Schedule to "the Standards of Weights and Measures (Packaged Commodities) Rules, 1957 framed under R. 5 of the Essential Commodities Act which vide entry 10 of the said Schedule clearly specifies that edible oil, Vanaspati ghee, butter oil can be packed in 50g, 100g, 200g, 500g, 1 kg, 2 kg, 3kg, 5 kg and thereafter in multiples of 5 kg. He further submits that product in question sold by assessee who has its own manufacturing facility in the State of Maharashtra and in Rajasthan they are registered as selling dealers, the packings sold by assessee range from 50 ml to 1 lt. and that is for the convenience of the consumers. He further submits that though the product in question is sold by assessee that clearly describes that it is 100% purely edible oil, merely because some consumers or purchasers may use it as hair oil at home, is not the criteria or determining factor to hold it to be hair oil taxable @12% specially when the said product can equally fall in entry 50 which continued to contain words "including Edible coconut oil whether refined or filtered" in the notification dated 15. 3. 1996. He therefore, contended that where the words "refined or filtered coconut oil" are including in both the competing entries, even if it is held that two views are possible, as per well settled principles of interpretation in taxing statutes, benefit should go to the assessee and commodity in question should be held to be taxable @ 4%.
(3.) MR. Jain, learned counsel for the respondent-assessee relies upon various case laws. In the first instance, he submits that this Court in Asstt. Commissioner vs. Rameshwar Lal Om Prakash (2001 STN 121 (Raj.) by a very short but well reasoned order held that refined coconut oil sold in small packings would continue to be edible oil taxable @ 6% under earlier notification dated 27. 3. 95, though the said judgment refers to the notification dated 153. 1996 and, therefore, this issue according to him stands concluded. Learned counsel than has drawn attention of this court to the decision of Hon'ble Supreme Court in Commissioner of Central Excise vs. Sharma Chemical Works (2003) 132 STC 251 (SC) wherein the Hon'ble Apex Court while holding that "banphool Oil" was correctly classifiable as an Ayurvedic Medicament under tariff item 3003. 30 of the Central Excise Tariff Act, 1985, and not as `perfumery oil' under tariff item 3305. 10 of the said Act. Learned counsel for respondent-assessee supports his submission with the said judgment by drawing attention of this Court towards para 13 and 14 in which Hon'ble Apex Court has observed that merely because a product was available across the counter it did not mean that it is not a medicament. Various products like Vicks, Strepsils, Mediker are available across the counters and even available in grocers shops and no prescription by doctor is needed to purchase such things, but still they continued to be medicaments. It was held in para 14 of the said judgment that onus or burden to show that a product falls within a particular tariff item is always on the Revenue. The Hon'ble Apex Court also held that merely because the percentage of medicament in a product is less, does not ipso facto mean that the product is not a medicament because generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. Therefore, the Hon'ble Apex Court held that burden of proving that Banphool oil is understood by the customers as an hair oil was on the Revenue. This burden is not discharged as no such proof is adduced and on the contrary the court found that the oil can be used for treatment of headache, eye problem, night blindness, reeling head, weak memory, hysteria, amnesia, blood pressure, insomnia, etc. and therefore, the said commodity was held to be taxable as Ayurvedic medicament. ;