- (1.) THIS revision petition has been filed under Section 15, Rajasthan Sales Tax Act, 1954 (hereinafter to be called 'the Act') against the order of the Rajasthan Sales Tax Tribunal, Ajmer dated July 5, 1989 by which it has allowed the appeal of the Department, set aside the order of the Deputy Commissioner (Appeals), Jodhpur and restored the order of the Commercial Taxes Officer, 'circle 'd', Jodhpur, holding that the petitioner's 'jaljira' and 'churans' do not fall under the entry "medicine and Drugs and All Kinds of Pharmaceutical Preparations (5%)" but fall under the last entry (Residuary) (7%) of the Notification No. F. 5 (16) P. D. C. T. /69-7 dated March, 9, 1976, issued under Section 5 of the Act.
(2.) AT the time of admission of the revision petition, the following question of law was formulated : - "whether the Tribunal was justified in holding that the 'jaljira' and Churans' manufactured and sold by assessee are not medicines & exigible to tax @ 5%, but are taxable at the residuary rate of 7% during the relevant assessment years (1978-79)?" It has been contended by the learned counsel for the assessee-petitioners that the petitioners' product 'jaljira' and 'churans' are medicines, they fall in the aforesaid entry of medicines and pharmaceutical preparations and as such taxable @ 5% and the learned Tribunal has seriously erred in holding that they are not medicines and are taxable at the residuary rate of 7%. He relied upon the meanings of medicines and drugs given in Random House Dictionery, Readers' Digest Universal Dictionary, Encyclopaedia Britanica and placed reliance on CST vs. Gramodhyog Karyalaya (1), Dabur India Ltd. vs. State of U. P. (2), CST vs. Dr. Jai Singh (3), CST vs. Murari Bros. (4), CST vs. Western India Chemical Co. (5) and CST vs. M. G. & Co. (6 ). In reply, it has been contended by Shri Dinesh Mehta Advocate that the Tribunal has given a categorical finding that the petitioner's Jaljira and Churans are not medicines, it is a fifiding of fact, no question of law is involved and as such revision petition is not maintainable. He also contended that petitioners' products were not being treated as medicines till the assessment year 1977-78 and the petitioners paid tax at the residuary rate during all the previous years. He further contended that for the first time on May 24, 1978 the petitioners obtained licence under Drugs and Cosmetics Act, 1940 and by the grant of this licence it cannot be said that their products became medicines. He also contended that it is not the case of the petitioners that their products are known in common or commercial parlance as medicines and Vaidhyas prescribe them to their patients as medicines. He relied upon Commissioner of Sales Tax, Madhya Pradesh, Indore vs. Shri Sadhna Aushadhalaya (7) and Commissioner of Sales Tax vs. Har Prasad Ayodhya Prasad It was further contended that the licence under the Drugs and Cosmetics Act, 1940 has been granted in respect of Jaljira only and not for Churans and Churans in no case be treated as medicines. He lastly contended that Section 3 (a), Drugs and Cosmetics Act, 1940 defines Ayurvedic drug and it does not define medicine, Section 2 (1), Patents Act, 1970 defines medicine and drug, as such it is not necessary to see the meanings of these words as given in the aforesaid dictionaries and as interpreted in the cases relied upon by the petitioners and the petitioners' literature (Papers No. 21 to 25) itself shows that the said products of petitioners are not medicines. There is no substance in the revision petition. In this revision petition, the petitioners have filed copies of certain documents (papers no. 19-29) which had been filed before the assessing authority. The licence, Paper No. 19, shows that it was granted on May 24, 1978. The assessment order dated November 29, 1980 reveals that till its previous year, the petitioners were charging sales-tax from their customers on the sale of their Jaljira and Churans at the higher rate (residuary rates) and not at the lower rate (as medicine) and were paying the same. Section 3 (a), Drugs and Cosmetics Act, 1940 runs as under : - " (a) Ayurvedic, Siddha or Unani drugs includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in, the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule. " This Act does not define 'medicine'. It is defined in Patents Act, 1970. Section 2 (1), Patents Act runs as under : - " (1) "medicine or drug" includes - (i) all medicines for internal or external use of human beings or animals, (ii ). all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals, (iii) all substances intended to be used for or in the maintenance of public health, or the prevention or control of any epidemic disease among human beings or animals, (iv) insecticides, germicides, fungicides, weedicides and all other substances intended to be used for the protection or preservation of plants; (v) all chemical substances which are ordinarily used as intermediates in the preparation or manufacture of any of the medicines or substances above referred to. "
(3.) THE petitioners have filed literature relating to their preparations vide papers no. 21-25. It is clearly mentioned in each item of their preparations that it is not an ayurvedic formula but it is their own formula and they are preparing it since last 80 years except 'hingastic' and 'lavan Bhaskar' Churan for which it is mentioned 'ayurvedic as per Yog Chintamani". Yog Chintamani is mentioned at Serial No. 42 of the First Schedule of the Drugs and Cosmetics Act, 1940. The petitioners have filed their price list, paper No. 26. Its relevant portions run as under : - " (ESTABLISHED 1899) JALANI KARYALAYA Rakhi House, JODHPUR-342 002 (India) Manufacturer of JALANI JALJIRA * VARIOUS MASALAS * DIGESTIVE & TASTY CHURANS" It is no where been mentioned in it that they are manufacturer of any medicine. They have also filed the price-lists of Vaidhya Nandram Gigram Chamariya, Fatehpur (Shekhawati), Bajaj and Company, Fatehpur (Shek-hawati), Mohta Ayurvedic Rasayanshala, Bikaner and Mewar Ayurvedic Works, Udaipur. It is clearly mentioned in the first price list, paper No. 27, "ayurvedic Patent And Shashtroktya Aushdhiyan. " In the second price-list, it is stated "ayurvedic Swanu Bhuti and Shashtroktya Aushdhiyan'. The price list of Mohta Ayurvedic Rasayanshala, Bikaner has given the list of important medicines for the main diseases. In the price list of Mewar Ayurvedic Works, Udaipur, it is mentioned that these medicines are reimbursable to State Government employees as per notification of the State Government. In view of the above quoted provisions of Section 3 (a) of the Drugs and Cosmetics Act, 1940, it cannot be said that the petitioners' Jaljira and Churans (except Hingastic and Lavan Bhaskar Churan) are medicines and are exigible to tax as such. It is not the case of the petitioners that their Jaljira and Churans are known in commercial or in common parlance as medicines. It is well settled law that while interpreting the entries of fiscal statutes, technical interpretation is not to be given but meaning as understood by the persons dealing with such commodities has to be adopted. It is also not the case of the petitioners that their Jaljira and Churans are prescribed to patients as medicines. ;