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TMI Blog1990 (4) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... on for treating medicinal preparations containing more than specified percentage of alcohol differently from other medicinal preparations and levying a higher rate of sales tax thereon. In other words, whether item 67 is liable to be struck down as violative of article 14 of the Constitution of India. The petitioner is the proprietor of a business run under the name and style of Ms. Sadhana Ausadhalaya. He manufactures various indigenous ayurvedic medicines and medicinal preparations. Many of the products manufactured by the petitioner have been patented. One such product is "mritasanjibani". According to the petitioner "mritasanjibani" is an Ayurvedic medicine. It is a prescribed remedy for human ailments, for diseases such as typhoid fever of acute type, cholera, complaints connected with digestion and loss of appetite, rheumatism, sciatica and also a general tonic to remove weakness and restore strength and vigour in the case of poor health and convalescent patients and in cases of post-natal complications. It is manufactured in accordance with the formula and the process laid down in the ancient ayurvedic shastras. It contains about 48 different ingredients which are mixed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see Basudeo Nirmal v. Assam Board of Revenue [1980] 45 STC 306 (Gauhati)]. However, on and after October 6, 1972 spirituous medicinal preparations became subject to tax under item 67 if they conformed to the requirements specified therein. The first contention of Mr. Senapati that mritasanjibani does not fall under item 67 is based on the following grounds: (1) That no spirit being used in the preparation of mritasanjibani, it cannot be termed as "spirituous medicinal preparation; (2) that there being no ayurvedic pharmacopoeia in existence, in the absence of any machinery to determine the alcoholic content of a medicinal preparation, item 67 cannot be given effect to; (3) that there is no finding in the instant case that mritasanjibani contains more than 12 per cent alcohol. We have considered the submissions of Mr. Senapati. We have also heard Mr. P.G. Barua, the learned Advocate-General, Assam, and Miss U. Barua, Government Advocate, Assam. The admitted position is that mritasanjibani is an ayurvedic medicinal preparation manufactured in accordance with the formula and process laid down in the ancient ayurvedic shastras. There is no controversy about the various ingredients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urvedic text books or pharmacopoeia, the components thereof are known. No actual analysis or examination is necessary to ascertain whether it contains more than 12 per cent of alcohol or not. That can be ascertained from the formula itself available in the pharmacopoeia. It is with this object in view that in item 67, the words "under any pharmacopoeia' were inserted by the Legislature. Reference to the ayurvedic pharmacopoeias in vogue, namely, Arka Prakash, Ayurvedic Sangraha and Bhisajya Ratnabali clearly goes to show that the alcoholic content of mritasanjibani is about 42 per cent. Despite all that, in course of hearing of these writ petitions, to meet the ends of justice, this Court allowed time to the learned counsel for both the parties to bring materials on record to enlighten the court as to the alcoholic content of mritasanjibani. No material was produced except a bare statement by the Revenue that it contains 40 per cent alcohol. Under the circumstances, this Court thought it fit to obtain the opinion of an expert on the point. The matter was, therefore, referred to the Principal of the Ayurvedic College, Guwahati, for his expert view as to whether mritasanjibani "is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 is subject to tax at 20 per cent. The question for determination is whether this classification is justified or not. The submission of Mr. P.G. Barua, the learned Advocate-General, Assam, is that the State has a wide discretion in selecting the persons or objects it wants to tax and that a statute cannot be challenged on the ground that it levies tax on one class of articles and not on others. In support of his contention Mr. Barua relies on the decision of the Supreme Court in East India Tobacco Co. v. State of Andhra Pradesh [1962] 13 STC 529; AIR 1962 SC 1733, more particularly the following passage: "It is not in dispute that taxation laws must also pass the test of article 14 But in deciding whether a taxation law is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting the persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection, the law operates unequally, and that cannot be justified on the basis of any valid classification that it would be violative of article 14." Mr. Barua submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item 67. All other ayurvedic medicines are exempt from tax. Though mritasanjibani and ayurvedic medicines evidently fall in the same category, a distinction has been made between the two for the purpose of taxation. What we have to find out is whether there is any justification for doing so. According to the petitioner there is absolutely no justification and that it is a case of arbitrary discrimination. According to the learned Advocate-General the justification is self-evident. The distinction is based on the high alcoholic content of mritasanjibani and its capability to cause intoxication. According to him these two distinguishing factors are enough to justify the action of the Legislature to treat it differently than other ayurvedic medicines. We have examined the rival submissions. We do not find that the factors pointed out by the learned Advocate-General can justify mritasanjibani being treated differently from other ayurvedic medicines. We may, in this connection, refer to the decision of the Supreme Court in Arya Vaidya Pharmacy v. State of Tamil Nadu [1989] 73 STC 346; AIR 1989 SC 1230 where the Supreme Court had to deal with identical situation arising under the Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icinal preparations, and even though they contain a high alcohol content, so long as they continue to be identified as medicinal preparations they must be treated, for the purposes of the sales tax law, in like manner as medicinal preparations generally, including those containing a lower percentage of alcohol. On this ground alone the appellants are entitled to succeed." In view of the aforesaid decisions of the Supreme Court which, in our opinion, are directly on the point, there is no escape from the conclusion that mritasanjibani being an ayurvedic medicine, even though it contains more than 12 per cent alcohol, so long it continues to be identified as ayurvedic medicines, it cannot be treated differently than other ayurvedic medicines for the purpose of levy of sales tax. There is no justification for the discrimination and, in our opinion, mritasanjibani should be treated for the purpose of levying sales tax in like manner as other ayurvedic medicines which as stated above are exempt from sales tax in Assam. We, therefore, hold that item 67 of the Schedule to the Assam Finance (Sales Tax) Act is violative of article 14 of the Constitution. In the result the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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