Bhattacharjee Pharmaceuticals & Co. Ltd. And Another v. ACST, Corporate Division, Kolkata, [2012] 50 VST 435 (WBTT)

Facts
The applicant company was a distributor and consignment agent of different pharmaceutical companies. The company had sold Thermoseal, R.A. Thermoseal and Hexigel, a medicated toothpaste and paid 4% tax applicable to drugs and medicines covered by entry 25A of Schedule C of the WB VAT Act. The department did not accepted the classification of above goods as drugs and medicine and levied tax at 12.5% applicable to general good. The company filed application before the West Bengal Taxation Tribunal assailing the assessment order passed by the assessing authority levying 12.5% tax on sale of above items.

Held
The item drug is not defined under the WB VAT Act. It is defined in section 3(b) of the Drugs and Cosmetics Act, 1940. The disputed items are drugs used for prevention of any diseases or disorder in human teeth. Under the West Bengal Sales Tax Act, 1994 there was a separate entry for toothpaste, but under the vat act there is no such separate entry for tooth paste. In the event of deletion of special entry, all the items of special entry come under the purview of general entry from the date of deletion of special entry. Under the West Bengal Sales Tax Act, entry 24 covered drugs and medicines and entry 54 covered toothpaste (whether medicated or not) along with other items. Under the WB VAT Act, there is no such entry like toothpaste. As a result, the medicated toothpaste shall come under purview of drugs and medicines covered by entry 25A of Schedule C liable to 4% tax and non medicated toothpaste shall be covered by the Schedule CA liable to tax at 12.5%. The Tribunal accordingly allowed the application filed by the company.