BALIA, J. - (1.) THIS revision under Sec. 86 (2) of the Rajasthan Sales Tax Act, 1994 is directed against the order dated 9. 6. 1997 passed by the Rajasthan Tax Board, Ajmer whereby the Tax Board has allowed the appeal filed by the respondent-assessee and set aside the order dated 12. 4. 1993 passed by the Additional Commissioner, Commercial Taxes, Rajasthan, Jaipur.
(2.) THE brief facts leading to this revision are: that the respondent-assessee who is a dealer of I. V. sets [blood donor sets], moved an application under Sec. 12-A of the Rajasthan Sales Tax Act, 1954 [for short `the Act'] before the Commissioner, Commercial Taxes, Rajasthan, Jaipur for determination of the following question: ``that the I. V. Sets [blood donor sets] made of plastic is whether surgical goods or medicines because the Govt. of India and Govt. of Rajasthan has declared the I. V. Sets as medicines vide Notification No. X-11014/8/88 DMS/pfa photocopy of said Notification is attached in Duplicate, moreover the Executive Engineer, Municipal Counsel has charged octroi on the I. V. sets of medicines. '' The above application was moved with a view to get a declaration whether the sale of I. V. Sets is taxable at the rate of 6% under Entry 56 of the Schedule prescribing Rates of Taxes payable on the sale of commodities or are to be taxed @ 10% under residuary entry not otherwise specified in the Schedule. The application was forwarded for disposal to the Additional Commissioner, Commercial Taxes, Jaipur. The Additional Commissioner, Commercial Taxes, Jaipur decided the above application vide his order dated 12. 4. 1993 holding that I. V. sets are not medicines and hence they are liable to be taxed @ 10%. He held that I. V. Sets are not understood as medicine by the Doctors, Patients as well as Wholesellers and Retailers in the commercial parlance as members of the trading community and the definition given in the Drugs and Cosmetics Act, 1940 is not relevant for the purpose of classification of goods to determine the rate of tax applicable. The I. V. sets are not medicines but are required and used for injecting medicines in the body of the patients and they do not by itself cure any disease. Against the above order dated 12. 4. 1993 passed by the Additional Commissioner, Commercial Taxes, the assessee filed an appeal before the Rajasthan Tax Board, Ajmer. The Rajasthan Tax Board, Ajmer vide its Judgment dated 9. 6. 1997 allowed the appeal filed by the assessee-respondent holding that in view of Govt. Circular dated 17. 3. 1989 whereby disposable hypodermic syringes; disposable hypodermic needles; and disposable perfusion sets have been treated as medicines, I. V. Sets are medicines and hence, they are liable to tax @ 6%. Hence this revision by the Revenue. Mr. Sangeet Lodha, the learned counsel appearing for the revenue has contended that while deciding taxability of a particular commodity, the meaning assigned to that commodity in any other Act should not be taken in consideration. He submitted that for determining the meaning or connotation of words describing an article or commodity in relation to the sales tax enactments, the words or expressions must be construed in the sense in which they are commonly undrstood in the trade and generally speaking, an item in the Schedule must be construed independent of any definition given under any other Statute. In support of this contention, he placed reliance on Commissioner of Sales Tax vs. Voltas Limited (1), Porritts and Spencer Ltd. vs. State of Haryana (2), and Associated Agencies vs. State of Tamil Nadu (3)
(3.) HE further submits that in the common parlance, medicine is considered to be a substance possessing or reputed to possess curative or remedial properties and which is administered to a patient either for the purpose of curing the disease from which he is suffering whether internally or externally, or as a precautionary measure but in no circumstances, any device by which such drugs or medicines or substances are administered to the ailing person or to a healthy person as a preventive measure can be considered as a medicine and hence, I. V. Sets cannot be considered as medicines. In support of his contention, he placed reliance on the dictionary meaning given to the word `medicine'. Mr. Lodha also drew my attention to a decision of the Gujarat High Court in B. Shah & Co. vs. State of Gujarat, (4), wherein while considering the question whether Nycil Powder is a toilet powder or a medicine, it was observed as under: ``it is clear from the composition of Nycil Powder that it is preliminary and essentially an article recommeded for use to cure a person of certain skin ailments and that it is made of medicinal article with starch and talc as its basis. The use for which it is recommended by the manufacturers is not for the purpose of grooming a person by beautifying his appearance but for the purpose of relieving a person from certain skin ailments and it is not even styled or advertised as a toilt powder. Having regard to these special attributes and property of Nycil powder as well as to the advertised use for which it is intended, it would be difficult to hold that Nycil Powder would or could ordinarily be used for the purpose of grooming a person by beautifying his appearance. The essential and true character of such an article as a remedial agent for disease would not be thereby altered and the article in question must, having regard to its character and property, be held not to fall within the ambit of the expression ``toilet articles'' as contained in entry 21-A of Sche-E of the Bombay Sales Tax Act, 1959. '' The learned counsel appearing for the Revenue also placed reliance on a decision of Punjab High Court in Bharat Motor Company vs. Assessing Authority (5), wherein it was held that in the absence of definition of `tractor' in the Punjab General Sales Tax Act, 1948, it must be construed in its popular sense. The definition of `tractor' in the Motor Vehicles Act, 1939 cannot be imported into the Punjab General Sales Tax Act, 1948. ;