In Re: M\/s. Akansha Hair & Skin Care Herbal Unit Private Limited,
GST
2018 (8) TMI 772 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2018 (16) G. S. T. L. 277 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAAR
Dated:- 1-8-2018
02\/WBAAAR\/Appeal\/2018
GST
Mr. Rakesh Kumar Sharma, Member And Ms. Smaraki Mahapatra, Member
\nPresent for the applicant:
\nSri Pradip Kumar Mukherjee, Authorised Representative, and Sri Anjan Dasgupta, Advocate
\nThis appeal has been filed by M\/s. Akansha Hair & Skin Care Herbal Unit, holding GSTIN 19AAECA3926GlZQ (hereinafter referred to as the “Appellant”), on 08.05.2018 against the Ruling dated 09.04.2018 pronounced by the West Bengal Authority for Advance Ruling.
\n2. The Appellant is a manufacturer of skin care preparations and had filed an application for Advance Ruling before the West Bengal Authority for Advance Ruling on the classification of 33 of its products, which are as follows:
\nSl.
\nName of<\/p>\n
= = = = = = = =<\/p>\n
Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n irritation of prickly heat, very helpful remedy in summer boils and pimples. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ich clogs pores. Strengths the natural protection of the skin. Instantly enhances glow and fairness. Improves the skin texture of skin and bod = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n scorching sun and environmental pollution and hazards of heavy make-up. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n dvance Ruling. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n cannot treat a product differently; = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n he Appellant, in it is written submissions, pointed out that the Ld. WBAAR has erred by not considering that the 'heading' [as specified in the First Schedule to the CTA' 75 (Customs Tariff Act, 1975), read with the Rules for the Interpretation of the First Schedule to the CTA' 75, as well as the Section and Chapter Notes] does not require any product to be offered primarily as 'medicament' to merit classification of the relevant products as medicaments. Reference has been made to the judgements passed by the Hon'ble Supreme Court of India in B.P.L. Pharmaceuticals Ltd. Vs. Collector [1995 (77) E.L.T. 485 (S.C.)] and Lohia Machines Ltd. vs. UOI & ORS [1987 (28) E.L.T. 234 (All.)]. The Appellant argued, citing the decision of the Hon'ble Tribunal in CCE, Pune vs. ESSEN Products (1) Ltd. [2006 (200) E.L.T. 342 (Tri. – Mumbai)], that packing is not indicative of classification under Chapter 33 of the Tariff as cosmetic or toilet preparation and that adverti<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n smetics Act 1940, the West Bengal Goods and Services Tax Act, 2017, the Central Goods and Services Tax Act, 2017, the Integrated Goods and Services Tax Act, 2017, the Customs Tariff Act, 1975, or Rules framed thereunder. The term “medicament” as defined in the Oxford Dictionary is “a substance used for medical treatment”; as per McMillan Dictionary it is “a substance used for treating an illness or injury”, as per Collins Dictionary it is “a medicine or remedy in a specified formulation”. The American Heritage Medical Dictionary defines it as “An agent that prompts recovery from injury or ailment; a medicine”. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n American Heritage Medical Dictionary], or “A complaint disease or physical disorder” [Farlex Partner Medical Dictionary] = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n considered. None of these are, by themselves, diseases or illnesses, or even injuries, though they may be caused by one or more of these. But treating them will not be addressing the disease or the illness or the injury. The products listed above are only addressing the external manifestations and are intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n off hair products and 2.0% in other products, de-categorising the item as “cosmetics”. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the products are used mostly for brightening the skin, controlling the excess oil secretion, keeping skin clean glossy and free of freckles and spots, beautifying the skin of sunburn and black patches, ensuring dazzling liveliness, enhancing glamour and beauty, preventing excessive perspiration, promoting feeling of freshness, increasing lustre of skin, keeping skin soft, fair, glowing, stop pre-mature ageing and wrinkling of skin, preventing sun burn rashes, dryness, discolouration and burning sensation of skin, properly cleansing, exfoliating and moisturizing the skin, helping for removal of make-ups and sunscreen which clogs pores, helping in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth, helping to skin and tighten skin pores, makes skin soft and more elastic, reducing excess skin oil, protecting from sun-burn injury. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ase paints; beauty creams, cold creams, make-up creams, cleansing creams, skin foods (including those containing bees' royal jelly) and skin tonics or body lotions; barrier creams to give protection against skin irritants, anti-acne preparations, which are designed primarily to cleanse skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne, toilet vinegars which are mixtures of vinegars or acetic acid and perfumed alcohol. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n n the form of liquid or cream = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" In Re: M\/s. Akansha Hair & Skin Care Herbal Unit Private Limited,GST2018 (8) TMI 772 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2018 (16) G. S. T. L. 277 (App. A. A. R. – GST)APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAARDated:- 1-8-201802\/WBAAAR\/Appeal\/2018 GSTMr. Rakesh Kumar Sharma, Member And Ms. Smaraki Mahapatra, … Continue reading “In Re: M\/s. Akansha Hair & Skin Care Herbal Unit Private Limited,”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13234","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13234","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13234"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13234\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13234"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13234"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13234"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n9
\nRomancho (Kewra)
\nSoothing agent having anti-bacterial, anti-fungal anti-septic activity. Prevents excessive perspiration. Feeling of freshness, increases lustre of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples.
\n10
\nSwarnabho
\nkeeps skin soft, fair, glowing, stops pre-mature ageing and wrinkling of skin, prevents sun burn rashes, dryness, discoloration and burning sensation of skin. Also helps growing of your baby
\n11
\nKomal Shree
\nKeeps skin soft, fair, glowing, stop pre-mature ageing and wrinkling of skin, prevents sun burn rashes, dryness, discoloration and burning sensation of skin. Also helps growing of our baby
\n12
\nNabaroop (Aloe Vera and Chandan)
\nProperly cleanses, exfoliates and moisturises the skin. Helps for removing make-ups and sunscreen which clogs pores. Strengthens the natural protection of the skin. Instantly enh<\/p>\n
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\n17
\nSwarnali
\nImprove the skin complexion. Removes acne, pimples, black spot, black heads, hyper pigmentation. Makes the skin glossy and shiny.
\n18
\nTanujjal
\nGently scrubs away skin scars, white & black heads, dead cells, makes skin smooth, healthy and glowing.
\n19
\nTwaka Snigdha (Lemon)
\nHelps in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth. Helps to skin and tighten skin pores. Make skin soft and more elastic, reduces skin oilyness.
\n20
\nTwaka Snigdha (Orange)
\nHelps in the normal firming and toning of skin along with hydrating the skin to make it glow, fresh and smooth. Helps to skin and tighten skin pores. Make skin soft and more elastic, reduces skin oilyness.
\n21
\nTwaka Snigdha (Neem)
\nHelps in the normal firming and toning of skin along with hydrating the skin to make it glow, fre<\/p>\n
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\n28
\nTanumitra 40
\nProtects from sun-burn injury.
\n29
\nTanumitra 60
\nProtects from sun-burn injury.
\n30
\nSarnajyoti
\nRemoves skin impurities, black heads, dead skin cells, pimples and scars.
\n31
\nSunayana
\nReduces dark circles and puffiness of the skin around the eyes. Softens fine lines and removes wrinkles.
\n32
\nRupam
\nPimples pack
\n33
\nPailab
\nAnti-Crack Cream
\nThe Appellant had argued that its skin care preparations are Ayurvedic Medicaments. meant for therapeutic or prophylactic uses and put up in packaging for retail sale, and entirely correspond to the description of goods under Tariff Head 3004 of Customs Tariff Act, 1975 (hereinafter referred to as the 'Tariff).
\n3. The West Bengal Authority for Advance Ruling (hereinafter referred to as “WBAAR”) after hearing the matter and examining the documents decided vide its Ruling dated 09.04.2018 that:
\n“Preparations for the care of the skin namely, Rupam (Pim<\/p>\n
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\n5. We observe that Advance Ruling had been sought by the Appellant for 33 different products, each with different ingredients and different uses. It is not that the products listed can be clubbed into one single category to pass a Ruling. Instead, each product has to be taken up separately and considered carefully.
\nThe Appellant should have applied for each product individually since classification is sought for each individual product.
\nAuthority for Advance Ruling is cautioned against accepting similar applications in future where multiple products are covered in a single application.
\nHowever, since WBAAR had admitted the application and passed a Ruling, the
\nAppeal filed is being taken up for disposal.
\n6. The Appellant has filed the Appeal on the following grounds:
\na. The Ruling of the WBAAR has erred in not passing a Ruling for products that have yet to come into existence. Under Section 95(a) “advance ruling” means a decision provided by the Authority or the Ap<\/p>\n
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\nj. Uniformity of classification;
\nk. Classification beneficial to the assessee is to be adopted;
\nI. The medicinal products are substantial and not subsidiary.
\n7. The core issue involved in this appeal is whether Ayurvedic Products manufactured by the Appellant, are classifiable under Chapter 33, or any other Chapter, or as medicaments under Chapter 30 of the Tariff.
\n8. The Appellant has rightly pointed out that the Ld. West Bengal Advance Ruling Authority has erred in not pronouncing its order on the products namely 'Swarnajyoti', 'Sunayana' and 'Tarumitra-60' as the products have not yet come into existence which is contrary to the definition of Advance Ruling as laid down under clause (a) of Section 95 GST Act, which specifically provides that supply of goods 'proposed to be undertaken' by an applicant also falls under the ambit of Advance Ruling.
\nHence, this Appellate Order will include Advance Ruling on the su<\/p>\n
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\nWorld Health Organisation (WHO) defines medicine as “the sum total of the knowledge, skills, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.”
\n14. In other words, to determin<\/p>\n
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\n17. Before taking up the product-wise analysis, an understanding of the skin ailments mentioned by the Appellant in the Annexure-X of written submission, is necessary:
\n“Blackheads”: Usually the primary sign of acne, consisting of a widened hair follicle filled with skin debris, bacteria, and oil called sebum. A blackhead has a wide opening to the skin and is capped with a blackened mass of skin debris.
\n“Acne”: Localized skin inflammation as a result of over activity of the oil glands at the base of specialized hair follicles. Acne happens when oil (sebaceous) glands come to life around puberty, when these glands are stimulated by male hormones that are produced in the adrenal glands of both boys and girls.
\n“Freckles”: a small patch of light brown colour on the skin, often becoming more pronounced through exposure to the sun.
\n“Black Patches”: Dark patches refer t<\/p>\n
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\n19. The Drugs and Cosmetics Act, 1940, defines cosmetic under clause (aaa) of Section 3 as under-
\n “cosmetic” means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic;
\n20. The Indian Standard (I.S. 4707-2) published by the Burea<\/p>\n
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\nFrom Annexure 'F' Appellant's written submission it has been found out that:
\nSl. No.
\nName of the product
\nQuantity of Salicylic Acid per 5 gms
\nPercentage
\n1
\nKomol Parash
\n0. 104
\n2.08
\n2
\nRomancho Lavender
\n0.203
\n4.06
\n3
\nRomancho anilla
\n0.203
\n4.06
\n4
\nRomancho (Kewra)
\n0.203
\n4.06
\n22. However, mere presence of an increased percentage of Salicylic acid does not automatically make a product a medicament. The other ingredients as well as the purpose and use of the product needs to be ascertained before determining its nomenclature:-
\nRomancho (Lavender\/Vanilla\/Kewra) are all labeled as “Body Talc” and the descriptions regarding their use on the retail packs are “Feeling of freshness, increases luster of skin, gives relief from itching sensation and irritation of prickly heat, very helpful remedy in summer boils and pimples”
\nKomal Parash is labeled as “Baby Body Talc” and the desc<\/p>\n
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\n25. None of the above descriptions qualify for categorising the products as “medicaments” or “medicines” as <\/p>\n
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\nSunscreen or sun tan preparations are also included.”
\n28. A review of the remaining items (27 in number) supplied by the Appellant, will help to classify them under respective Chapter headings, as per their description:
\nSl.No.
\nName of the product
\nClassified under
\nReasons for classification
\n1
\nBaranga
\n33
\nOther powder
\n2
\nTanuruchi
\n33
\nFace powder
\n3
\nTwakamadhuri
\n33
\nFace powder
\n4
\nSubarna
\n33
\nFace powder
\n5
\nAngarag
\n33
\nFace powder
\n6
\nTanurima\n<\/p>\n
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\n15
\nTwaka Snigdha (Lemon)
\n33
\nPreparations for care of skin
\n16
\nTwaka Snigdha (Orange)
\n33
\nPreparations for care of skin
\n17
\nTwaka Snigdha (Neem)
\n33
\nPreparations for care of skin
\n18
\nTwaka Snigdha (Rose)
\n33
\nPreparations for care of skin
\n19
\nSukhparash
\n33
\nAnti-acne cream\/Body cream
\n20
\nNamrata
\n33
\nBody lotion
\n21
\nAadrita
\n33
\nBody lotion
\n22
\nTanutra
\n33
\nSun-screen preparations
\n23
\nTanumitra 40
\n33
\nSun-screen preparations
\n24
\nTanumitra 60
\n33
\nSun-screen preparations
\n25
\nSarnajyoti
\n33
\nRemoves skin impurities, black heads, dead skin cells, pimples and scars
\n26
\nSunayana
\n33
\nFace cream
\n27
\nKomal Shree
\n33
\nPreparations for care of skin
\nIn view of the above discussions, we find that the 31 products discussed above, supplied or intended to be supplied by the Appellant, are not to be classified under Chapter 30, but are to be classified under Chapter 33 (Cosmetics) or Chapter 34 (Soaps), and are to be taxed accordingly.
\nThe Advance Ru<\/p>\n
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