M.K.Kar Gupta, Member (T) - (1.) IN this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, the applicant has prayed for setting aside of the order dated November 26, 1996 passed by the West Bengal Commercial Taxes Appellate and Revisional Board as also the order of assessment passed by the Commercial Tax Officer in respect of the assessment of the applicant for the period of 12 months ending on March 31, 1988 and the appellate order dated March 8, 1994 passed by the Assistant Commissioner of Commercial Taxes, Bally Circle.
(2.) THE case of the applicant is that the applicant is a partner carrying on business, in co -partnership, under the trade name Sharma Chemical Works having his place of business at 35, R.B.S. Road, P.O. Angus, District Hooghly. The applicant is a dealer registered under the West Bengal Sales Tax Act, 1954 for manufacturing hair oil and ayurvedic hair oil. The applicant manufactures "Ayurvedic Cool Banphool Oil". The manufacturer was granted a drug licence, under the Drugs and Cosmetics Act, 1940 and Rules framed thereunder, in form No. 25 -D by the Director of Drugs Control, West Bengal, to manufacture Ayurvedic Banphool Oil. The Director of Drugs Control also approved the composition of the product. It is submitted by the applicant that the following diseases and/or physical ailments are cured by applying this product : headache, eye problem, night blindness, reeling of head, weak memory, hysteria, amnesia, blood -pressure, insomnia, stomach pain, pain in eardrum, nausea, burns, nasal bleeding, cuts, heat, stroke, etc. The product, viz., Ayurvedic Cool Banphool Oil is claimed to be specified under Sub -head 3003.30 of the Excise Tariff which deals in ayurvedic medicine. The product was also subjected to research by Roy Ayurvedic Research Centre, a premier research centre on ayurvedic medicine in the country. The research centre has conducted examination of patients belonging to various age groups and comprising both sexes and the statistical data provided in the research report reveals allegedly tremendous effect of the product. In spite of the fact that the product is an ayurvedic medicine, the Commercial Tax Officer charged the applicant's sales for the period from May 1, 1987 to March 31, 1988 at 8 per cent instead of 4 per cent treating the dealer to be a manufacturer of hair oil although it being the only product of the applicant is an ayurvedic drug. Being aggrieved by the order of the Commercial Tax Officer, the applicant filed a petition of appeal before the Assistant Commissioner of Commercial Taxes, Bally Circle, who, by an order dated March 8, 1994, confirmed the said assessment. Thereafter, the applicant filed a petition for revision before the West Bengal Commercial Taxes Appellate and Revisional Board who also, by an order dated November 26, 1996, observed that they were not inclined to interfere with the order of the Commercial Tax Officer, Bally Charge. Being aggrieved by the order of the West Bengal Commercial Taxes Appellate and Revisional Board, the applicant has approached this Tribunal.
(3.) THE case of the respondents as available from their affidavit -in -opposition is that for the period of 12 months ending March 31, 1988, the applicant's turnover of sales liable to tax represented sales of hair oil and hence the tax was levied at 8 per cent in terms of the assessment order for the aforesaid period. No claim of the applicant that ayurvedic hair oil is an ayurvedic drug appears to be on record. The applicant did not appear to have claimed that hair oil manufactured by them was a drug within the meaning of the Drugs and Cosmetics Act, 1940. It is denied that hair oil manufactured and sold by the applicant is an ayurvedic drug. Hair oil is a different commodity liable to tax at 8 per cent and it does not come under ayurvedic drugs as specified under the Notification No. 3574 -F.T. dated September 27, 1982. The expression "hair oil" as specified in notification under Section 25 of the West Bengal Sales Tax Act, 1954 (in short, the "1954 Act") was wide enough to include any oil excluding coconut oil during the material period.;