STATE OF GUJARAT vs TITAN INDUSTRIES LTD

As common question of law and facts arise in both these Tax Appeals, both these Appeals are decided and disposed of together by this common judgment and order.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 25th September 2012 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad [hereinafter referred to as, "the Tribunal"] in First Appeal No. 20 of 2011 by which the learned Tribunal has allowed the said Appeal preferred by the respondent herein-original appellant-Dealer and has held that the protective sunglasses fall under Entry 87 of Schedule-II to the Gujarat Value Added Tax Act, 2003 [hereinafter referred to as, "the VAT Act"], the appellant-State of Gujarat has preferred Tax Appeal No. 657 of 2013 praying to quash and set-aside the Order dated 20th October 2011 passed by the Joint Commissioner of Commercial Tax [Legal], Gujarat State, Ahmedabad - the Determining Authority, whereby, the Determining Authority held that the protective sunglasses fall under Entry 87 of Schedule II to the VAT Act and has held that the Fastrack brand sunglasses are "medical devices " and fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006. The learned Tribunal has also held that the Fastrack brand Sunglasses also shall fall under Notification dated 1st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law : [A] "Whether in the light of the above facts and circumstances of the case, the Hon''ble Tribunal had rightly interpreted Entry 28A (ii) to Schedule II of the Gujarat Value Added Tax Act, 2003 ?"

[B] "Whether on the facts and circumstances of the case, the Hon''ble Tribunal had rightly hold that the "Sunglasses" are "medical devices" ?"

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 25th September 2012 passed by the Tribunal in First Appeal No. 22 of 2011 by which the learned Tribunal, relying upon its earlier decision rendered in First Appeal No. 20 of 2011 [which is subject matter of Tax Appeal No. 657 of 2013 before this Court] has allowed the said Appeal preferred by the respondent herein-original appellant-Dealer and has held that the protective sunglasses fall under Entry 87 of Schedule-II to the VAT Act, the appellant-State of Gujarat has preferred Tax Appeal No. 826 of 2013 praying to quash and set-aside the Order dated 18th October 2011 passed by the Joint Commissioner of Commercial Tax [Legal], Gujarat State, Ahmedabad - the Determining Authority, whereby, the Determining Authority held that the protective sunglasses fall under Entry 87 of Schedule II to the VAT Act and has held that the Fastrack brand sunglasses are "medical devices" and fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006. The learned Tribunal has also held that the Fastrack Sunglasses also fall under Notification dated 1st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law : [A] "Whether in the light of the above facts and circumstances of the case, the Hon''ble Tribunal had rightly interpreted Entry 28A (ii) to Schedule II of the Gujarat Value Added Tax Act, 2003 ?"

[B] "Whether on the facts and circumstances of the case, the Hon''ble Tribunal had rightly hold that the "Sunglasses" are "medical devices" ?"

For the sake of convenience, Tax Appeal No. 657 of 2013 arising out of the impugned judgment and order passed by the learned Tribunal in First Appeal No. 20 of 2011 is considered as a lead matter. The facts leading to Tax Appeal No. 657 of 2013 in nutshell are as under : 4.1 That, the respondent herein [hereinafter referred to as, "the Dealer"] is carrying on the business of trading of Fastrack brand Sunglasses. That, the dealer made an application to the Joint Commissioner of Commercial Tax [Legal], Gujarat State - Determining Authority under Section 80 of the VAT Act for determination of tax rate on their product Fastrack brand Sunglasses. It was the case on behalf of the dealer that Fastrack brand Sunglasses are "medical devices" and therefore, as per Notification of Finance Department dated 31st March 2006 and/or Notification 16th May 2008, the product Fastrack brand Sunglasses are "medical devices" and shall fall in Entry 28 [A] (ii) of Schedule II to the VAT Act. That, the determining authority by determination order passed under Section 80 of the VAT Act dated 20th October 2011 held that the product Fastrack brand Sunglasses are not medical devices, and therefore, shall not fall in Entry 28 [A] (ii) of Schedule II to the VAT Act and shall fall/considered as residuary goods and will fall under Schedule-II, Entry 87 and is liable to be taxed @ 12.5% and not as "medical device".

4.2 That, feeling aggrieved and dissatisfied with the determination order dated 20th October 2011 passed by the learned Joint Commissioner of Commercial Tax [Legal], Ahmedabad, the respondent herein-Dealer preferred First Appeal before the learned Tribunal. By the impugned judgment and order, the learned Tribunal has considered and held that the Fastrack branch Sunglasses as "medical devices" by observing that the sunglasses are used to protect the eyes from ultraviolet rays and to prevent early on-set of Cataract as well as protects cornea in cases of dry eyes and consequently, has held that the same are "medical devices" and shall fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notification dated 31st March 2006/1st May 2008. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal in holding that the Fastrack brand Sunglasses as "medical devices" and consequently fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notifications dated 31st March 2006/1st May 2008, the State has preferred the present Tax Appeal to consider the following substantial questions of law :

[A] "Whether in the light of the above facts and circumstances of the case, the Hon''ble Tribunal had rightly interpreted Entry 28A (ii) to Schedule II of the Gujarat Value Added Tax Act, 2003 ?"

[B] "Whether on the facts and circumstances of the case, the Hon''ble Tribunal had rightly hold that the "Sunglasses" are "medical devices" ?"

Shri Hardik Vora, learned AGP has appeared on behalf of the appellant-State. Learned advocate Shri Tanvish Bhatt has appeared on behalf of the respondent-Dealer in Tax Appeal No. 657 of 2013 and Shri R.V Desai, learned advocate has appeared on behalf of the respondent-Dealer in Tax Appeal No. 826 of 2013. 5.1 Shri Hardik Vora, learned AGP has submitted that the learned Tribunal has materially erred in considering and holding the product Fastrack brand Sunglasses as "medical devices" and consequently shall fall in Entry 28A (ii) of Schedule II to the VAT Act read with Entry 5 of the Notifications dated 31st March 2006 and 1st May 2008.

5.2 It is further submitted by Shri Vora, learned AGP that by holding product "Fastrack brand Sunglasses" as "medical devices", the learned Tribunal has not properly appreciated and/or interpreted the Notification dated 31st March 2006 and Notification dated 1st May 2008.

5.3 It is further submitted by Shri Hardik Vora, learned AGP that in the present cases, Notification dated 31st March 2006 shall ot be applicable in the facts and circumstances of the case. It is submitted that thereafter, Notification dated 31st March 2006 came to be superseded and the same was substituted by Notification dated 16th May 2008. It is submitted that there is material change in the earlier Notification dated 31st March 2006 and the subsequent Notification dated 16th May 2008. It is submitted that as per earlier Notification dated 31st March 2006, Spectacles, Correctives and Protectives were falling under "Medical equipments, Devices and Implants" for the purpose of Entry 28A (ii) of Schedule II. It is submitted that thereafter, vide Notification dated 16th May 2008, the earlier Notification dated 31st March 2006 came to be superseded and the Government specified all types of "medical equipments, devices and implants" to be "medical devices" for the purpose of Entry 28A (ii) of Schedule II to the Act. It is submitted that therefore, the words used in the earlier Notification viz., "Spectacles, Correctives and Protectives" came to be deleted. It is submitted that therefore, the reasonings given by the learned Tribunal that Fastrack brand Sunglasses are used to protect eyes from ultraviolet rays and to prevent early on-set of cataract as well as it protects cornea in case of dry eyes, and therefore, shall be considered as "medical devices" is absolutely on misinterpretation of entry and the Notifications dated 31.03.2006 and 1st May 2008.

5.4 It is further submitted by learned AGP Shri Hardik Vora that therefore, the Fastrack brand Sunglasses cannot be said to be "medical devices" and therefore it shall not fall in Entry 28A (ii) of Schedule II to the VAT Act.

5.5 Shri Vora, learned AGP has heavily relied upon [i] medical equipment; [ii] medical device and [iii] medical implants. It is submitted that relying upon definition of "medical device", the product Fastrack sunglasses cannot be said to be "medical device" as sought to be contended on behalf of the respective Dealers, and even as held by the learned Tribunal. It is further submitted by Shri Hardik Vora, learned AGP that even otherwise, the learned Tribunal has not properly appreciated the change in the Notifications dated 31st March 2006 and 1st May 2008. It is further submitted by learned AGP Shri Vora that even subsequently, the Notification dated 16th May 2008 came to be further amended by Notification dated 4th October 2013 whereby it is clarified that "all types of medical equipment, devices and implants" excluding "the goggles, spectacles of sun-glass and sun-glass which are not correctives" only shall fall in Entry 28A (ii) of Schedule II to the VAT Act. It is submitted that the Notification dated 4th October 2013 can be said to be clarificatory notification. It is submitted that therefore, even as per subsequently amended Notification dated 4th October 2013, spectacles, sunglasses and sunglass are not correctives and therefore, excluded from Entry 28A (ii) of Schedule II to the VAT Act. It is submitted that therefore, even the sunglasses can be said to be protective and can be said to protect eyes from ultraviolet rays, in that case also, the same cannot be termed as "medical device" falling under Entry 28 of Schedule II to the VAT Act.

5.6 Shri Hardik Vora, learned AGP has heavily relied upon decision of Rajasthan High Court in the case of RayBan Sun Optics India Limited v. Dy. Commissioner [Appeals], Commercial Tax Department, (2014) 44 GST 631 [Rajasthan] has held that "sun-glasses" shall not fall under Entry 125 of Schedule IV of Part A of the Rajasthan Value Added Tax Act, 2003 as ''Spectacles, parts and components thereof, contact lens and lens cleaner'' but shall be classified under the residuary clause.

5.7 Making the above submissions and relying upon the above decision, it is requested to allow the present Appeals and thereby quash and set-aside the impugned judgment and orders passed by the learned Tribunal and hold the questions in favour of the Revenue and against the respondent-Dealers.

The present Appeals are vehemently opposed by Shri Tanvish Bhatt, learned advocate appearing on behalf of the Dealer in Tax Appeal No. 657 of 2013 and Shri R.V Desai, learned advocate appearing on behalf of the respondent-Dealer in Tax Appeal No. 826 of 2013.

Learned advocate Shri Tanvish Bhatt appearing on behalf of the respondent-Dealer has vehemently submitted that in the facts and circumstances of the case, the Tribunal has not committed any error in considering and holding the Fastrack brand Sunglasses as "medical device". It is submitted that therefore, when the "sunglasses" are treated and considered as "medical device", the same shall fall in Entry 28A (ii) of Schedule II to the VAT Act, and therefore, residual clause shall not be applicable, and therefore, the Dealer is not liable to pay tax on such sunglasses/medical device @ 12.5%. 7.1 It is vehemently submitted by Shri Bhatt, learned counsel for the Dealer that the learned Tribunal has considered in detail, the use and purpose of sunglasses ie., to protect the eyes from ultraviolet rays and thereafter only has held the sunglass as "medical device". It is submitted that as per Notification dated 31st March 2006, all the spectacles, correctives and protectives will fall in Entry 28 of Schedule II to the VAT Act. It is submitted that therefore, when the sunglasses are protectives, the same are required to be considered as "medical device" as per the Notification dated 31st March 2006, and therefore, shall fall in Entry 28A (ii) of Schedule II to the VAT Act.

7.2 Shri Tanvish Bhatt, learned counsel appearing on behalf of the respondent-Dealer has taken us through the relevant materials to show and demonstrate that the sunglasses are protectives and are used to protect the eyes from ultraviolet rays and to prevent damage to the eyes. It is submitted that therefore, when the sunglasses are protectives, and therefore, they are rightly held to be "medical devices" and therefore, rightly held to be falling in Entry 28A of Schedule II to the VAT Act.

7.3 Learned advocate Shri Bhatt appearing on behalf of the Dealer has placed reliance upon a decision of Supreme Court in the case of Ponds India Limited [Merged with HL Limited] vs. Commissioner of Trade Tax, Lucknow, reported in (2008) 8 SCC 369; particularly paragraphs 35, 44 & 45 thereof, in support of his submissions that as held by the Hon''ble Supreme Court any product which prevents disorder of human function would also come within the purview of drug.

7.4 Shri Tanvish Bhatt, learned counsel for the respondent-Dealer has also heavily relied upon a decision of Bombay High Court in the case of Addl. Commissioner of Sales Tax, VAT-III, Mumbai vs. M/s. Chheda Marketing, reported in (2012) 55 VST 45. It is submitted that in the said decision, Division Bench of the Bombay High Court has held that the protective sunglasses are liable to be treated as "medical device".

7.5 Making the above submissions and relying upon the above decision, it is requested by learned counsel for the respondent to dismiss the present Appeal and hold the question of law in favour of the Dealer and against the Revenue.

Shri R.V Desai, learned counsel for the Dealar in Tax Appeal No. 826 of 2013 has adopted the submissions made by learned advocate Shri Tanvish Bhatt appearing on behalf of the Dealer in Tax Appeal No. 657 of 2013. It is submitted that in the facts and circumstances of the case and when considering the user aspect of the sunglasses ie., to protect the eyes from ultraviolet rays and to prevent damage to the eyes, the learned Tribunal has considered "sunglasses" as "medical device", it is submitted that no error has been committed by the learned Tribunal in arising at such a conclusion. Therefore, it is requested to dismiss the present Tax Appeal.

Heard learned advocates appearing on behalf of the respective parties at length.

The short question which is posed for consideration before this Court is whether Fastrack brand Sunglasses/Sunglasses can be said to be "medical device" falling under Entry 28A (ii) of the VAT Act ?

While considering the aforesaid question and while appreciating the submissions made by learned counsel appearing on behalf of the respective parties, the chronology of events which led to different notifications, and therefore, the necessary changes in the Notifications issued by the Government which may reflect the intention on the part of the Legislature is required to be considered.

Entry 28A (ii) of Schedule II to the VAT Act, as reflected in the first Notification dated 31st March 2006, the subsequent Notification dated 16th May 2008 [superseding the earlier Notification dated 31st March 2006] and clarificatory Notification dated 4th October 2013 amending the Government Notification dated 16th may 2008 read as under :

NOTIFICATION

FINANCE DEPARTMENT

SACHIVALAYA, GANDHINAGAR

DATED the 31st March, 2008

No. (GHN-32) VAT-2006/SCH-H(28A) (d)-TH- In exercise of the powers conferred by sub entry (ii) of entry 28A of Schedule II to the Gujarat Value Added Tax Act, 2003 (Guj. 1 of 2005), the Government of Gujarat hereby specifies the items mentioned in the Schedule appended hereto, as ''Medical equipments, devices and implants'' for the purpose of the said entry 28A.

SCHEDULE

Sr .No.

Description of

Central Excise

Head No.

Sub headin g No. Tariff item No.

1 2 3 4 5

1 Contact lenses - - 9001 30 00

2 Spectacle lenses of glass

9001 40

3 Spectacle lenses of other material

4 Frames and mountings for spectacles and parts thereof

9003

5 Spectacles, correctives and Protectives

9004

6 Instrument and apparatus for measuring blood pressure

9018 90 11

7 Acupuncture apparatus

9018 90 43

8

Baby incubators

9018 90 92

9 Orthepedic or fracture appliances other than sub entry (11) (12) and (13) of entry 3 of Schedule 1 of the Act

9021 10 00

10

Artificial joints other than sub entry (11), (2) and (13) of entry 3 of Schedule I of the Act

9021 31 00

11

Frequency modulated hearing aid system used for hearing by handicapped person in group situation other than hearing aid covered by sub entry (2) and (3) of entry 3 of Schedule I of the Act.

9021 40 10

12

Pacemakers for stimulating heart muscles, excluding parts and accessories

9021 50 00

13

Paris and accessories of hearing aids.

9021 90 10

14

Clinical thermometers

9025 11 10

15

Digital thermometers

9025 19 10

16

Cardiac stents

17

Drug Evuting Stents

18 Cathe ters

19

L.V. Cannulae

20

Eone Cements

21 Scalp Vein Set

22

Internal Prosthetic Replacements

23

Paris (not specified or included elsewhere in this Schedule) of goods mentioned in this Schedule.

9033 00 00

Explanation : For the purposes of this notification:

(1) The rules for the interpretation of the provisions of the Central Excise Tariff Act, 1985 read with Explanatory Notes as updated from time to time, published by the Customs Co-operation Council, Brussels, apply for the interpretation.

(2) Where any commodities are described against any heading or sub heading or as the case may be, tariff item, and the aforesaid description is different in any manner from the corresponding description in the Central Excise Tariff Act, 1985, then only those commodities described as aforesaid shall be covered and other commodities though covered by the corresponding description the Central Excise Tariff shall not be covered under this notification.

(3) Subject to the Explanation (2), for the purpose of any entry contained where the description against any heading or sub heading or as the case may be, tariff items matches, fully with corresponding description in the Central Excise Tariff, then all the commodities covered for the purposes of the said tariff under that heading or sub heading or as the case may be tariff item, shall be covered by the scope of this notification.

By order and in the name of the Governor of Gujarat.

Sd/- illegible

M. A. Bhatt

Additional Secretary to the Government

NOTIFICATION

FINANCE DEPARTMENT

Sachivalaya, Gandhinagar

Dated the 16th May, 2008.

No (GHN-28) VAT-2008/SCH-H (28A) (14)-TH-In exercise of the powers conferred by sub entry (ii) of entry 28A of Schedule II to the Gujarat Value Added Tax Act, 2003 (Guj. 1 of 2005) and in suppression of the Government Notification, Finance Department No. (GHN-32) VAT-2006/SCH-II(28A)(4)-TH, dated the 31st March, 2006, the Government of Gujarat hereby specifies all types of medical equipment, devices and implants to be the ''Medical equipment, devices and implants'' for the purpose of the said entry 28A of Schedule II of the Act."

NOTIFICATION

FINANCE DEPARTMENT

Sachivalaya, Gandhinagar

Dated the 4th October, 2013

No. (GHN-22) VAT-2013/SCH-H (28A) (22)-TH-In exercise of the powers conferred by sub entry (ii) of entry 28A of Schedule II to the Gujarat Value Added Tax Act, 2003 (Guj. 1 of 2005), the Government of Gujarat hereby amends the Government Notification, Finance Department No. (GHN-28) VAT- 2008/SCH-II(28A)(14)-TH, dated the 16th May, 2008, as follows, namely:-

In the said notification, after the words "all types of medical equipment devices and implants", the words "excluding the goggles, spectacles of sun-glass and sun-glass, which are not correctives" shall be inserted."

Thus, as per Government Notification dated 31st March 2006, the items mentioned in the said Notification dated 31st March 2006 are treated as "medical equipments, device and implants" for the purpose of Entry 28A of the VAT Act, includes "Spectacles, Correctives and Protectives". However, thereafter, Government Notification dated 31st March 2006 came to be superseded by subsequent Government Notification dated 16th May 2008, in supersession of the Notification dated 31st March 2006, the Government specified all types of medical equipments, devices and implants" for the purpose of all the said entry 28A of Schedule II to the Act. Therefore, "Spectacles, Correctives and Protectives" came to be deleted and only those medical equipments, devices and implants are specified to the "medical equipments, devices and implants" to be the "Medical equipments, devices and implants" for the purpose of the said Entry 28A of Schedule II to the Act. And therefore, use of spectacles, correctives and/or protectives would loose its significance.

From the schedule mentioned in the Notification dated 31st March 2006, it appears that all other items; except "spectacles, correctives and protectives" all other items can be said to be either medical equipments, medical devices or medical implants. However, with a view to remove doubt and to take away "spectacles, correctives and protectives " out of the purview of Entry 28A (ii) of Schedule II to the VAT Act, the Government Notification dated 31st March 2006 came to be superseded and by virtue of Notification dated 16th May 2008, only medical equipments, devices and implants are specified to be "medical equipments, devices and implants" for the purpose of Entry 28A of Schedule II to the VAT Act.

In light of question posed for consideration of this Court whether the Sunglasses/Fastrack brand sunglasses can be said to be "medical device" as held by the learned Tribunal as Sunglasses/ Fastrack brand Sunglasses are protectives, and therefore, the same shall be considered as "medical device" and therefore, shall fall in Entry 28A of Schedule II to the VAT Act. However, as observed hereinabove, there is a material change in the earlier Notification dated 31st March 2006 and the subsequent Notification dated 16th May 2008. The words/entry in the schedule "more particularly item mentioned at Serial No. 5, specifies "Spectacles, Correctives and Protectives" has been deleted and as per the substituted Notification dated 16th May 2008, the "medical equipments, devices and implants shall be specified to be the medical devices and implants" for the purpose of the said entry 28A of Schedule II to the Act. At this stage, it is required to be noted that even subsequently the Notification dated 16th May 2008 came to be amended wherein specifically "the goggles, spectacles of sun-glass and sun-glass which are not correctives" are excluded from the definition of "all types of medical equipment, devices and implants". Therefore also, sun-glass, even may be protectives, cannot be included in the definition of "medical equipment, devices and implants" in Entry 28A (ii) of Schedule-II to the VAT Act. Therefore, merely because the Sunglasses are protectives, the same cannot be said to be "medical device". As per definition of "medical devices" given by World Health Organization, the "medical devices" means, "medical equipment used for the specific purpose of diagnosis and treatment of disease or rehabilitation following disease or injury. As per Wikipedia, the free Encyclopedia, the definition of "a medical device" is "any instrument, apparatus, appliance, software, material, or other article - whether used alone or in combination, including the software intended by its manufacturer to be used specifically for diagnostic and/or therapeutic purposes and necessary for its proper application - intended by the manufacturer to be used for human beings for the purpose of :

[a] Diagnosis, prevention, monitoring, treatment, or alleviation of disease;

[b] Diagnosis, monitoring, treatment, alleviation or compensation for an injury or handicap;

[c] Investigation, replacement, or modification of the anatomy or of a physiological process.

15.1 Under the circumstances, Fastrack brand sunglasses/ sunglasses cannot be said to be "medical device" merely because they are protectives; more particularly, considering the Legislative intend to supersede the earlier Notification dated 31st March 2006 by a new Notification dated 16th May 2008. It cannot be disputed, while interpreting an entry in the taxing statute, the legislative intend to play an important role, some meaning as to be given to the intention of the Legislature in superseding the earlier Notification dated 31st March 2006 and bring in the new Notification dated 18th May 2008. If the intention of the Legislature was to continue to consider spectacles and protectives as "medical equipments, devices and implants" for the purpose of Entry 28A of Schedule II of the Act, there was no necessity to supersede the Notification dated 31st March 2006 to come out with a new Notification dated 16th May 2008.

No so far as reliance placed upon decision of Hon''ble Supreme Court in the case of Ponds India Limited [Supra] is concerned, at the outset, it is required to be noted that the said decision shall not be applicable to the facts of the case on hand. In the case before the Hon''ble Supreme Court, the Apex Court considering the definition of "drug" under the Drugs & Cosmetics Act, 1940 held that any product which prevents disorder of human function would also come within the purview of drug. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand.

Now so far as reliance placed upon decision of the Bombay High Court in the case of M/s. Chheda Marketing [Supra] is concerned, at the outset, it is required to be noted that the Bombay High Court was considering the earlier Notification dated 23rd November 2005 in which "spectacles, lenses or glass, frames and mounting for spectacles and parts thereof" were considered as medical devices. As observed hereinabove, in the present case, the earlier Notification dated 31st March 2006 has been substituted by the Government Notification dated 16th May 2008. Under the circumstances, the said decision shall not be applicable to the facts of the case on hand. 17.1 At this stage, it is required to be noted that in the case of RayBan Sun Optics India Limited [Supra], the Rajasthan High Court has held that the "sunglasses" are not classifiable under Entry 125 of Schedule IV of Part-A as "Spectacles, parts and components thereof, contact lens and lens cleaner" under the Rajasthan Value Added Tax Act, 2003. However, as observed hereinabove, the earlier Notification dated 31st March 2006 has been substituted by a subsequent Government Notification dated 16th May 2008.

In view of the above and for the reasons aforestated, the learned Tribunal has committed an error in considering the Fastrack brand Sunglasses/Sunglasses as "medical devices" [as the same are protectives] and thereby has materially erred in holding that the same shall fall in Entry 28A (ii) of Schedule II to the Act. Consequently, the impugned judgment and orders passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad in First Appeal No. 20 of 2011 and First Appeal No. 22 of 2011 are hereby quashed and set-aside. The questions of law are answered in favour of the Revenue and against the assessee-Dealers.