- (1.) THESE petitions were heard together because common questions of fact and of law arise in them for consideration. They are filed by certain manufacturers of patent or proprietary medicines under Article 226 of the Constitution for writs in the nature of mandamus or certiorari, as the case may be. In all these cases the respondents who are the Board of Revenue Authorities of the Commercial Tax department and the District Revenue Officer charged with the administration of the Medicinal and Toilet Preparations Excise Duties Act. 1955 (Central Act 16 of 1955) hereinafter called the Act, as amended in 1961 have, after calling for returns of their manufacture of patent and proprietary medicines since 1st June, 1961, when an amendment to the aforesaid Act was brought about under Act XIX of 1961, issued demands against the petitioners for payment of excise duty calculated ad valorem at 10 per cent of the value on the patent or proprietary medicines manufactured by them subseauent to 1st June. 1961.
(2.) THE first contention of the petitioners in these cases, for challenging the correctness and validity of the above demand, was that under the Schedule to Act xvi of 1955, in item 1, under which the proposed levy of excise duty had been made, only preparations containing alcohol are liable to excise duty; but in the case of the preparations manufactured by the petitioners, except a single item called "selviue" (manufactured by the petitioner in W. P. No. 1139 of 1964)alcohol in its free state had not been used; but they had used "spirits," "chloroform" or other tinctures containing alcohol in small quantities only as preservatives. In such circumstances, bearing in mind the definition of alcohol given in Section 2 (a) of the Act and also the general scope of the Act and the Rules the petitioners contend that it is illegal to consider that their preparations contain alcohol, and therefore, liable to pay excise duty.
(3.) IN addition to this main plea which turns on the proper interpretation to be given to the use of the term "containing alcohol", in the Schedule to the Act, the petitioners have also raised pleas that the levy in question is illegal because (1) it involves a double taxation on their products. (2) the levy is discriminatory, (3) the levy is barred by time and finally (4) that in any event, assuming that all the above mentioned points are decided against them, bearing in mind the presumption of law enunciated in Rule 60 (3) of the Rules framed under the Act; the appropriate item of the Schedule under which they should have been assessed to excise duty will be item 2 and not item I. In their counter affidavit, the department traversed all these points and raised pleas contra. I shall refer to them at the appropriate stage in the course of this judgment.;