THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.25475 and 25501 of 2010 COMMON ORDER: (Per THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN) Since the questions, which arise for consideration in both these writ petitions, are common they were heard together and are being disposed of by this common order. The petitioner manufactures, among others, “chlormint and happydent white” which they claim are ayurvedic proprietary medicines. It is their case that they were issued a drug licence under the Drugs and Cosmetics Act, 1940; and the said licence, for manufacture of ayurvedic/unani/siddha drugs, has been renewed from time to time; these two products earlier fell under Entry 88 of the IV Schedule to the A.P.V.A.T. Act, 2005; and from 1.7.2008, it falls under Entry 117 of the IV Schedule, and is exigible to tax at 4%. The assessing authority, however, levied tax at 12.5% treating it as falling under Schedule-V of the Act. Aggrieved by the order of assessment, the petitioner preferred an appeal before the Appellate Deputy Commissioner which is said to be still pending as on date. The Appellate Deputy Commissioner, however, rejected the petitioner’s stay application, aggrieved by which the petitioner carried the matter in revision to the Joint Commissioner who, by the impugned order dated 17.9.2010, rejected the petitioner’s request for grant of stay pending disposal of the appeal before the Appellate Deputy Commissioner. The 3rd respondent, in the order under challenge herein, rejected the petitioner’s request on the ground that the assessing authority had held that these two products were confectionary; they were sold across the counter in kirana and general stores in addition to medical shops; they do not cure any disease in particular; to purchase them no prescription from any medical practitioner is required; in common parlance these two products are categorized as chewable confectionery or mouth refresheners; and, as such, they fall within the ambit of the V Schedule, and are liable to be taxed at 12.5%. Sri V.Bhaskar Reddy, Learned Counsel for the petitioner, would draw attention of this Court to the certificate of renewal of Licence, issued in Form 26-D under Rule 155 of the Drugs and Cosmetics Rules, in support of his submission that, since the petitioner has been issued a valid licence by the competent authority under the Drugs and Cosmetics Act for manufacture of these two products, they are necessarily to be treated as ayurvedic proprietary medicines liable to be taxed at 4% under Entries 88 and 117 of the IV Schedule. Learned counsel would place reliance on Puma Ayurvedic Herbal (P) Ltd. v Commissioner, Central Excise, Nagpur[1] in support of his submission that merely because these products are sold across the counter in kirana shops would not disentitle them from being categorized as ayurvedic medicines, more so when a licence is granted in the petitioner’s favour for the manufacture of these products under the Drugs and Cosmetics Act. While the submission of the Learned Counsel, both on the interpretation to be placed on Entries 88 and 117 of Schedule-IV and his contention that these products are ayurvedic products, cannot be said to be without merit, we do not propose to examine these contentions in the present proceedings since a substantive appeal is pending adjudication before the Appellate Deputy Commissioner. We consider it appropriate, in such circumstances, to direct the respondents not to take coercive steps for recovery of the disputed tax on condition that the petitioner pays 50% of the disputed tax within four weeks from today. The amount, if any, already paid in this regard shall be given credit to. Learned Counsel for the petitioner also seeks a direction for expeditious disposal of the appeal. The 2nd respondent is directed to dispose of the appeal at the earliest in any event not later than eight weeks from today. Both the Writ Petitions are disposed of accordingly. No costs. ______________ V.V.S.RAO, J ____________________________ RAMESH RANGANATHAN,J Date: 20.10.2010 Note: Special Standing Counsel for Commercial Commercial Taxes shall communicate this order to the 2nd respondent. B/o asp [1] (2006) 145 STC 200