SUJIT KUMAR DATTA Vs. COMMERCIAL TAX OFFICER, STRAND ROAD CHARGE AND ORS.

JUDGEMENT

(1.) THE question herein this case is whether sugar of milk is or is not bulk drug for the purpose of assessment of sales tax in serial No. 24A of Schedule IV of the West Bengal Sales Tax Act, 1994.

(2.) THE petitioner is the authorized partner of German Homoeopatic Distributors and carries on business of sale and purchase of homoeopathic drugs and medicines on wholesale basis and the goods are mainly imported from outside the country and are sold in bulk. Return was filed assessing four per cent tax on the sale of sugar of milk in bulk in four quarters ending March 31, 2001 but the Commercial Tax Officer, Strand Road Charge, (respondent No. 1) completed the assessment of the petitioner for the said quarter on June 16, 2003 under Section 45 of the West Bengal Sales Tax Act, 1994 (in short, "the 1994 Act") where the sales of "sugar of milk" amounting to Rs. 36,62,568 were not allowed to be exigible to tax at four per cent only as an item specified in serial No. 24A of Schedule IV of 1994 Act on the ground that "sugar of milk" is not itself a homoeopathic medicine, but a vehicle of homoeopathic medicine and, therefore, charged tax at 10 per cent under Section 17(1)(c) of the 1994 Act. On appeal by the petitioner, the Assistant Commissioner of Commercial Taxes, Barabazar Circle (respondent No. 2) dismissed the appeal by order dated March 1, 2005 and on revision, the learned Administrative Member of the West Bengal Commercial Taxes Appellate and Revisional Board (respondent No. 3) also rejected the revisional application on April 27, 2007 and confirmed the finding that sugar of milk is not exigible to tax at four per cent and, hence, this application under Section 8 of the West Bengal Taxation Tribunal Act, 1987.

(3.) BASING reliance on the grounds assigned by the respondents for non -accepting sugar of milk as bulk drugs and exigible to tax at four per cent the Revenue has filed affidavit -in -opposition in this case and supporting that Mr. A. K. Nath, learned SR, contended that sugar of milk is not necessarily a homoeopathic medicine nor it is an integral part or constituting element of that medicine but only a vehicle to preserve, hold and pass over from manufacturing point to consuming point. Mr. Nath further contends that sugar of milk is a chemical composition formed as lactose, i.e., a reducing sugar as is admitted by the petitioner also in his grounds of revision and is used in infant feeding, confections and other foods, in bacteriological media and in pharmacy as diluents and that is supported by the dictionary meaning of the item. Mr. Nath also contends that both in trade and common parlance the item is used only as a carrier/vehicle and, hence it cannot be treated as bulk drugs and/or as reduced sugar liable to tax at four per cent only and hence, pressed for dismissal of the application.