Gujarat Sales Tax Act, 1969: Entry 25 of Schedule I, Entry 26(1) of Schedule II Part A – Product “KADIPROL” sold by the assessee – Classification as, Poultry Feed under Entry 25 of Schedule I or as a Drug and Medicine under Entry 26(1) of Schedule II Part A – Assessee classified the product as poultry feed whereas the Department held that it should be classified as drug and medicine – Order passed by the High Court that Kadiprol would be classified as poultry feed – On appeal, held: In the judgment passed by the High Court there was no detailed and in-depth examination of the facts – Though the matter would have been remitted to the High Court for decision afresh but since the issue is in the academic interest and there is no revenue implication, present proceedings closed keeping the larger question on the Common Parlance Test open, to be considered in an appropriate case.
Disposing of the appeal, the Court
HELD: 1.1 It is noticed that the product in question KADIPROL was sold in a sachet/packet of 100 gm. It was not meant to be given as a food to the poultry. It was required to be mixed with the feed given to the poultry/birds. It cannot be directly fed and/or given to the birds. Therefore, there is some merit in the submission of the Revenue that the impugned judgment and order does not deal with the reasoning given by the tribunal. Therefore, usually in the said background, the matter would have been remitted to the High Court for a fresh decision. However, there is no inclination to pass an order of this nature as it is accepted that the issue in question is of academic interest and even if the appeal is decided in favour of the Revenue, it would not have any revenue implication as there are no tax dues. In view of the above facts, the present proceedings are closed keeping the larger question on the Common Parlance Test open, to be considered in an appropriate case in a like matter. [Para 7, 8][828-F-H; 829-A-B]
State of Gujarat v. M/s. Pfizer (India) Ltd.; Glaxo Laboratories (India) Ltd. v. State of Gujarat (1979) 43 STC 386 (Guj); Eskayef Limited v. Collector of Central Excise (1990) 4 SCC 680 : [1990] 1 Suppl. SCR 442; Glindia Ltd. v. Union of India 1989 (22) ECC 311; State of Gujarat v. Pfizer Ltd. (1991) 82 STC 374 (Guj); Sun Export Corporation v. Collector of Customs, Bombay (1997) 6 SCC 564 : [1997] 1 Suppl. SCR 434; M/s. Golden Streak Drug & Pharmaceuticals Ltd., Lucknow v. Commissioner Trade Tax Lucknow 2017-TIOL-2502HC-ALL-CT; Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. (1989) 1 SCC 150 : [1988]
3 Suppl. SCR 12; Plasmac Machine Manufacturing Company Private Limited v. Collector of Central Excise, Bombay (1992) 84 STC 107 (SC) : [1990] 3 Suppl. SCR 384; Commissioner of Customs (Import) Mumbai v. Dilip Kumar and Company and Ors. (2018) 9 SCC 1 : [2018] 7 SCR 1191 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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