# M/S Sarswat Peroxides Pvt. Ltd. Revisionist v. The Commissioner Commer. Tax U.P

- **Citation:** (2024) 8 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-07
- **Case number:** Sale/Trade Tax Revision No. 196 of 2013
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-sarswat-peroxides-pvt-ltd-revisionist-v-the-commissioner-commer-tax-u-p-52435
- **Pages:** 5

## Headnote

Civil Law - U.P. Value Added Tax Act, 2008
-
Sections
4,
59
-
Controversy
-
Classification of goods and rate of levying
VAT on the goods - Revisionist moved an
application
before
Commissioner,
Commercial Tax, seeking his opinion as to
whether "vitamins and minerals pre-mix"
would fall under the Entry 29 of Schedule
II-A of Act, 2008 or under Entry 89 of
"oars
and
minerals"
-
Commissioner
rejected application, held that "vitamins
and
minerals
pre-mix"
would
be
categorized as "unclassified goods", liable
to be taxed @ 12.5% - Revisionist
preferred appeal - Appeal rejected -
Impugned order - Held, according to
Section 4 of Act, 2008 tax is levied on
goods and not individually on raw material
from which goods are prepared - Items
given in Entry 29 are not goods which are
being sought to be taxed in the present
case, but it is the finished product which is
"vitamins and minerals pre-mix", thus
would not fall under the category of
"chemicals"
-
Entry
41
defines
the
products which are used for alleviation of
any disease or its symptoms, thus it would
not fall under category of "drugs and
medicines" - Entry 89 of Schedule II of
Act, 2008, provides for raw "oars and
minerals", thus it would not fall under
category of "oars and minerals" . (Para 3,
4, 5, 10, 11, 12, 14, 15)

Revision is dismissed. (E-13)

## Text

8 All. M/S Sarswat Peroxide Pvt. Ltd. Vs. The Commissioner Commer. Tax U.P.
749
49. The instant government appeal
and criminal revision preferred against the
impugned judgment and order passed by
learned trial court dated 25.04.1996 are
dismissed and the impugned judgment and
order passed by learned trial court are
affirmed.
The
surviving
respondents
namely Kumari Archana, Ajai Pratap Singh
and Udai Pratap Singh are directed to
execute a persona bond and two sureties in
the like amount to the satisfaction of the
court concerned, in compliance of Section
437 A of Cr.P.C. within fifteen days of
uploading of this judgment on website of
this Hon'ble Court undertaking to appear
before the High Court as and when such
Court issues notice in respect of appeal or
petition filed against this judgment.
----------
(2024) 8 ILRA 749
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Sale/Trade Tax Revision No. 196 of 2013

M/S Sarswat Peroxides Pvt. Ltd.
 ...Revisionist
Versus
The Commissioner Commer. Tax U.P.
 ...Respondent

Counsel for the Revisionist:
Kunal Srivastava, Rajesh Kumar Verma

Counsel for the Respondent:
C.S.C.

Civil Law - U.P. Value Added Tax Act, 2008
-
Sections
4,
59
-
Controversy
-
Classification of goods and rate of levying
VAT on the goods - Revisionist moved an
application
before
Commissioner,
Commercial Tax, seeking his opinion as to
whether "vitamins and minerals pre-mix"
would fall under the Entry 29 of Schedule
II-A of Act, 2008 or under Entry 89 of
"oars
and
minerals"
-
Commissioner
rejected application, held that "vitamins
and
minerals
pre-mix"
would
be
categorized as "unclassified goods", liable
to be taxed @ 12.5% - Revisionist
preferred appeal - Appeal rejected -
Impugned order - Held, according to
Section 4 of Act, 2008 tax is levied on
goods and not individually on raw material
from which goods are prepared - Items
given in Entry 29 are not goods which are
being sought to be taxed in the present
case, but it is the finished product which is
"vitamins and minerals pre-mix", thus
would not fall under the category of
"chemicals"
-
Entry
41
defines
the
products which are used for alleviation of
any disease or its symptoms, thus it would
not fall under category of "drugs and
medicines" - Entry 89 of Schedule II of
Act, 2008, provides for raw "oars and
minerals", thus it would not fall under
category of "oars and minerals" . (Para 3,
4, 5, 10, 11, 12, 14, 15)

Revision is dismissed. (E-13)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Rajesh Kumar Verma,
learned counsel for the revisionist as well
as Sri Sanjay Sarin, learned counsel
appearing for the opposite party.

2. Present revision has been
preferred by the revisionist against order of
Full Bench of the Commercial Tax Tribunal
dated 10.07.2013 wherein they were
adjudicating the appeal preferred by the
revisionist against order of Commissioner,
Commercial Tax, U.P. passed under Section
59 of the U.P. Value Added Tax Act, 2008
(hereinafter referred to as "the Act, 2008").
Controversy in the present case pertains to
the goods produced by the revisionist
which are categorized as "vitamins and
minerals pre-mix".
750 INDIAN LAW REPORTS ALLAHABAD SERIES
3. It has been submitted by learned
counsel for the revisionist that all around
the opposite party were treating "vitamins
and minerals" to be falling in the category
of Entry 29 of Schedule II of the Act, 2008
under the heading "chemicals" and it was
taxed @ 4%. Subsequently, it seems that
some controversy arose with regard to
classification of the goods produced by the
revisionist and with regard to rate of
levying Value Added Tax, on the said
goods, due to which the revisionist moved
an application under Section 59 of the Act,
2008
before
the
Commissioner,
Commercial Tax, seeking his opinion as to
whether "vitamins and minerals pre-mix"
would fall under the Entry 29 of Schedule
II-A of Act, 2008 or under the category of
Entry 89 of "oars and minerals".

4. The Commissioner, Commercial
Tax
after
due
consideration
of
the
submissions made on behalf of revisionist
was of the view that "vitamins and minerals
pre-mix" does not fall under the Entry 89
under the heading "ores and minerals"
inasmuch as "ores and minerals" pertain to
"raw material" and "vitamins and minerals
pre-mix" could not fall under the category
of Entry 89 and accordingly rejected the
application of the revisionist and held that
"vitamins and minerals pre-mix" would be
categorized as "unclassified goods" liable
to be taxed @ 12.5%.

5. The revisionist being aggrieved
by order of the Commissioner, Commercial
Tax dated 11.09.2012, preferred an appeal
before the Commercial Tax Tribunal. The
Tribunal upheld the view taken by the
Commissioner, Commercial Tax and held
that "vitamins and minerals pre-mix" does
not fall under the category of "ores and
minerals" or "drugs and medicines" and nor
under the Entry 29 of "chemicals" and was
liable to be taxed as "unclassified goods"
and
accordingly
rejected
the
appeal
preferred by the revisionist.

6. Before this Court also same
arguments have been reiterated and it has
been
submitted
that
the
revisionist
produced mineral preparation named as
"vitamins
and
minerals
pre-mix"
.
Composition of 100gm of the said
preparation is as follows :-

S.
No.
Name of
Mineral
and
Vitamin
Chemica
l Name
Weight
1
Minerals
- Element
Calcium
Calcium
Carbona
te
160
mg

2
Minerals
- Element
Iron
Ferrous
Fumerat
e
7.2mg
3
Vitamins
- Vitamin
- A
Retinyl
Palmitat
e
200mcg
4
Vitamins
- Vitamin
- B-1
Thiamin
e
Hydrochl
oride
0.31mg
5
Vitamins
- Vitamin
B-2
Riboflavi
n
0.3
5mg

6
Vitamins
- Vitamin
- 5
Nicotine
Acid
(Niacin)
3.8
8mg

7
Vitamins
- Vitamin
- C
Ascorbic
Acid
16
mg

8
Vitamins
- Vitamin
- D
Free
Folic
Acid
16
Mcg

7. Perusal of Schedule II of the
Act, 2008 would indicate that Entry 29
8 All. M/S Sarswat Peroxide Pvt. Ltd. Vs. The Commissioner Commer. Tax U.P.
751
pertain to "chemicals" has been defined as
:-

29. Chemicals including
caustic soda, caustic potash, soda
ash, bleaching powder, sodium
bicarbonate,
sodium
hydro
sulplate,
sulphate
of
alumina,
sodium nitrate, sodium acetate,
sodium
sulphate,
acid
slurry,
trisodium
phosphate,
sodium
tripoly phosphate, sodium silicate,
sodium
meta
silicate,
carboxymethyle cellulose, sodium
sulphide,
acetic
acid,
sodium
bisulphite, oxalic acid, sodium
thiosulphate,
sodium
sulphite,
sodium alginate, benzene, citric
acid, diethylene glycol, sodium
nitrate,
hydrogen
peroxide,
acetaldehyde,
pentaerythritol,
sodium alpha olefin, sulphonate,
sodium
formate,
chemical
components and mixture and all
other
chemicals
not
specified
alsewhere in this Schedule or any
other Schedule.

While "oars and minerals"
have been provided for in Entry 89
of Schedule II of Act, 2008.

8. Considering the case of the
revisionist firstly as to whether "vitamins
and minerals pre-mix" would fall under
the category "chemicals". It is noticed
that according to the revisionist the goods
produced by him are termed as "vitamins
and minerals pre-mix", which are made
from certain chemicals including Calcium
Carbonate,
Di-calcium
Phosphate,
Potassium, Iodine, Sodium Banzol etc.
which according to the revisionist are
'chemicals' and accordingly the goods are
liable to be taxed treating them to the
"chemicals".

9.

The
arguments
of
the
revisionist
cannot
be
accepted
considering the fact that even if the
finished product namely "vitamins and
minerals
pre-mix"
is
made
from
chemicals which are its raw material,
while the goods which is sought to be
taxed under the Act, 2008 are not the raw
material but the finished goods namely
"vitamins and minerals pre-mix".

10. Section 4 of the Act, 2008
which a charging section clearly states
that the "tax payable on sale of goods
under this Act, shall be levied and
paid....." accordingly tax is levied on the
goods and not individually on the raw
material from which the goods are
prepared. Undisputedly, items given in
Entry 29 are not the goods which are
being sought to be taxed in the present
case, but it is the finished product which
is "vitamins and minerals pre-mix".

11. Accordingly, this Court is
unable to accept contention of the
revisionist
that
goods
classified
as
"vitamins and minerals pre-mix" would
fall under the category 'chemicals'.

12. The second contention raised
by the revisionist is as to whether "vitamins
and minerals pre-mix" would fall under the
category
"drugs
and
medicines"
as
provided under Entry 41. Entry 41 also
specifically
in
its
contents
excludes
medicated soap, shampoo, antiseptic cream,
face cream, massage cream, eye gel and
hair oil etc. This entry very clearly defines
the products which are used for alleviation
of any disease or its symptoms.
752 INDIAN LAW REPORTS ALLAHABAD SERIES
13. The words "drugs" and
"medicines" are used synonymously in
common parlance. They have been defined
in various English dictionaries as under :-

Merriam Webster
Drug - a substance used as
a medication or in the preparation
of medication.
Medicine - a substance or
preparation used in treating disease,
something that affects well-being.

Cambridge
Drug - any natural or
artificially made chemical that is
used as a medicine, a natural or
artificially
made
substance,
especially one that is illegal, which
is taken for pleasure, to improve
performance in an activity, or
because someone is addicted.
Medicine - a drug that is
used to treat illness or injury.

Collins
Drug - any substance used
in the treatment, prevention, or
diagnosis of disease, a chemical
substance, such as a narcotic, taken
for the effects it produces.
Medicine - any substance
used in treating or alleviating the
symptoms of disease.

Oxford
Drug - a medicine or other
substance
which
has
a
physiological effect when ingested
or otherwise introduced into the
body. A substance taken for its
narcotic or stimulant effects.
Medicine - a drug or other
preparation for the treatment or
prevention of disease.
14. From the above it is
clear that "vitamins and minerals premix" does not fall in the category of
"drugs and medicines" nor has any
material adduced either before the
authorities below or before this Court
that it would qualify for being
classified as "drugs and medicines"
and accordingly, there is no reason to
accept
the
contention
of
the
revisionist
that
"vitamins
and
minerals pre-mix" would fall under
the
category
of
"drugs
and
medicines".

15. Lastly, the argument of
revisionist with regard to inclusion
of "vitamins and minerals pre-mix"
under "ores and minerals" as
defined in Entry 89 of Schedule II
of the Act, 2008, the said entry
provides only for raw "oars and
minerals",
without
mentioning
"vitamins and minerals pre-mix"
falling under the said entry, and
hence it is clear that "vitamins and
minerals pre-mix" would not fall
under the category of "oars and
minerals".

16. For the aforesaid
reasons, this Court does not find
any infirmity in the order passed by
the Additional Commissioner or the
Tribunal
that
"vitamins
and
minerals pre-mix" would be termed
as unclassified item and liable to be
taxed as such.

17.
In
the
light
of
discussion
made
above,
the
revision
is
dismissed.
The
substantial questions of law are
decided against the revisionist and
in favour of revenue.
8 All. Subhash Chandra Vs. Srikant Goswami & Ors.
753
----------
(2024) 8 ILRA 753
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 372 of 2023

Subhash Chandra ...Appellant
Versus
Srikant Goswami & Ors. ...Respondents

Counsel for the Appellant:
Sri Sharad Pathak assisted by Sri Piyush Pathak

Counsel for the Respondents:
Sri Gaurav Mehrotra assisted by Sri Akber
Ahmad, Sri Prashant Puri and Ms. Shhreiya
Agarwal, Sri Santosh Kumar Tripathi

Special
Appeal-Allahabad
High
Court
Rules,
1952-Chapter
VIII
Rule
5Contempt of Courts Act, 1971-Section
19(1)- Challenge to-Maintainability of an
intra-court appeal under Chapter VIII
Rule 5 of the Allahabad High Court Rules,
1952-The respondents raised objections
to the maintainability of the appeal as the
Act bars appeals against orders disposing
of or dropping contempt proceedings-The
appellant claimed that the High Court's
inherent power in contempt matters,
being sui generis in nature, allow for an
intra-court appeal-Held, no appeal lies
against orders dismissing or dropping
contempt
proceedings
without
punishment-The Act is a self contained
code, and general provisions for intracourt appeals under Allahabad High Court
Rules, 1952, do not override this statutory
limitation-Therefore,
a
contempt
petitioner cannot file an appeal against an
order where the court finds substantial
compliance and dismisses the contempt
petition.(Para 1 to 71)

If the High Court, for whatsoever reason,
decides an issue or makes any direction,
relating to the merits of the dispute
between the parties, in a contempt
proceedings, the aggrieved person is not
without remedy. Such an order is open to
challenge in intra-court appeal (if the
order was of a learned Single Judge and
there is a provision for an intra-court
appeal), or by seeking special leave to
appeal
under
Article
136
of
the
Constitution of India (in other cases).
(Para 57)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Jagdamba Prasad Vs Balgovind & ors. Neu.
Cit. No. (2016) : AHC: 77023-DB

2. Hub Lal Yadav Vs Mahendra & ors. (2017)
ADJ Online 0638

3. Ch. Shyam Sunder Vs Daw Dayal Khanna
(1955) SCC OnLine All 186

4. Shah Babu Lal Khemji Vs J.D. Kania & anr.
(1981) 4 SCC 8

5. Manohar Lal Vs Prem Shankar (1959) SCC
OnLine All 130

6. Maninderjeet Singh Bitta Vs U.O.I. (2012) 1
SCC 273

7. Rajit Ram Yadav Vs St. of U.P. & ors.(2024) 7
ADJ 747 FB

8. Mednapore People's Coop. Vs Cunilal Nanda &
ors.(2006) 5 SCC 399

9. C/M Madarsa Ehle-E-Sunnat Vs Prakash Singh
& ors.(2016) SCC Online Alld. 34-38

10. C/M Smt. Dulhin Rajdhari Kunwari Kanya Jr.
High Scl. Vs Dinesh Chandra Kannaujia &
anr.(SAPL No. 303 of 2010)

11. Shivam Das Chandani & ors. Vs Prabhu N.
Singh & ors.(2022) 3 ADJ 275 LB DB 03