ISSUE

1. Whether ‘Sanitary Napkin’ and ‘Baby Diaper’ are same nature of goods for GST classification?

2. What is the correct HSN code and Rate of Tax of ‘Baby Diapers’ under GST?

OUR OPINION

1. Chapter 96 of HSN code with Heading ‘Miscellaneous Manufactured Articles’ gives as following:

(1)		(2)
9619		Sanitary towels (pads) and tampons, napkins and napkin liners for babies and similar articles, of any material
9619 00	–	Sanitary towels (pads) and tampons, napkins and napkin liners for babies and similar articles, of any material:
9619 00 10	—	Sanitary towels (pads) or sanitary napkins
9619 00 20	—	Tampons
9619 00 30	—	Napkins and napkin liners for babies
9619 00 40	—	Clinical diapers
9619 00 90	—	Other

‘SANITARY NAPKIN’ is a specified and separate entry with HSN Code 9619 00 10, while there is another entry ‘NAPKINS AND NAPKIN LINERS FOR BABIES’ with HSN Code 9619 00 30. For interpretation of the HSN code, more specific entry will be appropriate. Hence, the entry having words ‘for babies’ needs to be given credence as the product under our consideration is ‘baby Diapers’ or in other words ‘Diapers of the size and design which can only be used by babies’ i.e. small children. It is important that the words ‘For babies’ has been used under entry having HSN Code 9619 00 30 i.e. ‘NAPKINS AND NAPKIN LINERS FOR BABIES’ being a separate entry under separate HSN code shall be considered more appropriate for baby napkins.

Further, there is another sub-category as ‘CLINICAL DIAPERS’ under HSN Code 9619 00 40 which does not specify the user i.e. either for adults or for mid aged children or for babies. We need to consider what is clinical diaper and why the word ‘Clinical’ has been prefixed before the word ‘Diaper’ and can a baby diaper be included in the category of ‘Clinical Diaper’? After considering various articles as well as internet, it can be mentioned that ‘Clinical Diapers’ are those which are clinically safe and recommended for use by human beings including children and babies. Clinical does not mean ‘only for medical use under specified circumstances’, it has wider connotation.

The schedule of classification under GST specifying the rate of tax on goods under Notification No. 1/2017- Central Tax (Rate) dated 28/06/2017 on all goods covered under HSN code 9619 including its all sub-categories of goods was originally specified as 6% CGST +6% SGST or 12% IGST, subsequently the Notification No. 19/ 2018- Central tax (Rate) dated 26.07.2018 made certain changes in rate of tax for HSN code: 9619 00 10, “Sanitary towels (pads) or sanitary napkins, tampons” has been classified as GST entry attracting ‘nil’ rate. Thus, the original entry under HSN Code 9619 specifying single rate has been converted into having two different rates i.e. ‘Nil’ rate for sub-categories 9619 00 10 or 9619 00 20.

But nothing has been changed for the ‘Napkins and Napkin liners for babies’ with ‘HSN Code 9619 00 30’ or for ‘Clinical Diapers’ under HSN Code 9619 00 40 which were originally included and classified under entry attracting 6%+6% as per Notification No.1/2017-Central Tax (Rate). Thus, the Rate of GST on baby diapers or napkins for babies or clinical diapers will be 6% CGST +6% SGST or 12% IGST.

Further, it maybe pertinent to briefly consider the category under the erstwhile Central Excise regime wherein under HSN Code 4818 40 00, the items ‘Baby and Clinical Diapers’ were put under exemption as one entry, thus the Excise Law had also recognised the item ‘Baby Diaper’ under the same category of ‘Clinical Diapers’ for the taxation purpose. Under the GST regime the HSN Code 4818 40 00 does not exist, thus it would not be subjected to tax under broad category of HSN Code 4818 which is now under GST is liable to 9% CGST + 9% SGST or 18% IGST.