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TMI Blog1995 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... es framed under the Act. The appellate authority confirmed the order, but the Tribunal, in further appeal, held the article to be medicine and since the Joint Director, Health Services has certified that the consignments of the article were purchased by the Government for bona fide use in eradicating malaria under the National Malaria Eradication Programme, the sales were exempt from payment of sales tax under rule 24 of the Rules. At the instance of the Revenue, the Appellate Tribunal has made this reference. 3.. There is no dispute that benzene hexachloride 50 per cent W.D.P. is used in eradication of malaria by spraying it in marshy places and waterlogged places, evidently for controlling or destroying flies which carry malaria germs. It is nobody's case that benzene hexachloride 50 per cent W.D.P. is either consumed internally or applied externally on the body of human beings or animals for any medicinal purpose or for prevention or cure of malaria. Section 6 of the Act declares, inter alia, that tax payable by a dealer under the Act shall be levied on the taxable turnover relating to goods specified in Schedule II at the rate mentioned in the corresponding entry in column (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent W.D.P. is a medicine. The Appellate Tribunal has held that the article is medicine, since it is used to eradicate malaria. This conclusion is controverted by the Revenue according to which benzene hexachloride 50 per cent W.D.P. is an insecticide coming under the provisions of the Insecticides Act, 1968 and is not medicine coming under rule 24(ii)(a) or the Drugs and Cosmetics Act, 1940, or the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (No. 16 of 1955). It has to be noticed that the expression medicine or insecticide have not been defined in the Act or the Rules. Drugs and Cosmetics Act, 1940 is a Central Act which also does not define medicine, but defines drug as follows, in section 3(b): drug includes,- (i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes; (ii) such substances (other than food) intended to affect the structure or any function of the human body or intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the official Gazette, include in the Schedule from time to time; or (iii) any preparation containing any one or more of such substances. The Schedule takes in B.H.C. (Benzene Hexachlorides) (1, 2, 3, 4, 5, 6hexachlorohexane). 10.. We have indicated that the General Sales Tax Act or the Rules do not define medicine or insecticide . The definitions or expressions in other statutes cannot always be applied in dealing with the case governed by statute which does not contain a definition. Learned counsel for the assessee Shri Nema referred to the observations of the Allahabad High Court in Rashtra Deep Laboratory v. Commissioner of Sales Tax [1983] 53 STC 419 to the effect that the concept of medicine is not static. It is a changing concept linked with the advancing human knowledge and its endeavour to alleviate human suffering. It is also changing with the change in social thinking of a community with a view to solve its problems. The court observed that the term medicine cannot be confined within the traditional concept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparation in the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 includes only drugs which are remedies or prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals, which is almost identical to the first part of the definition of drug in the Drugs and Cosmetics Act, 1940. 14.. It is common case that benzene hexachloride is used to spray marshy places and waterlogged places for the purpose of containing and destroying malaria carrying germs. It is not to be consumed internally by any human being or animal or applied externally. Several insecticides are used for destruction of germs mainly, if not only, for prevention of spread of diseases, e.g., benzene hexachloride, tik-20, red poison, D.D.T., etc. If a person wants to prevent, being afflicted by malaria or treatment for malaria and goes to a medical shop and asks for medicine, it is inconceivable that he would be given any quantity of benzene hexachloride which is essentially an insecticide. The popular or commercial concept of medicine is necessarily something consu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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