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The Commissioner,Trade Tax U.P.Lucknow v. S/S Dawakhana Tibbeiya College - SALES/TRADE TAX REVISION No. 1297 of 1996 [2005] RD-AH 806 (18 March 2005)


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Commissioner of Trade Tax, U.P., Lucknow.    Applicant.


S/S Dawakhana Tibbeiya College, Aligarh.            Opp-Party

Hon'ble Rajes Kumar, J.

These two revisions under section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act") are directed against the order of the Tribunal dated 19th July, 1996 relating to the assessment year, 1986-87 and 1987-88 by which the Tribunal has held surma, pyrolene, rogan benazir and sharbat as medicines.

Heard learned counsel for the parties.

Learned Standing Counsel submitted that the aforesaid items are not medicines. He submitted that surma is used to protect the eye and, therefore, it is covered under the entry of "all kinds of medicines and toilet preparation...........". He submitted that pyrolene is a tooth powder and therefore, it is liable to tax as a toilet preparation. With regard to rogan benazir it is stated that it is hair oil and is liable to tax as toilet goods and sharbat is liable to tax as a soft beverages and not as a medicine and  in support of his contention, he relied upon the entries of the notification and the following decisions.

Murari Brothers Versus Assistant Commercial Taxation Officer, reported in 48 STC, 286 in which kajal has been held as cosmetic, in the case of V.C. Ramalingam & Sons Versus State of Tamil Nadu, reported in 127 STC, 382 in which Vicco Bajradanti tooth powder has been held as toilet preparation and in the case of Shri Baidhyanath Ayurvedic Bhawan Pvt. Ltd, Jhansi Versus Commissioner of Sales Tax reported in 2004 (2) UPTC 825, Lal Dant manjan has been held as toilet preparation. He also relied upon the decision of this Court in the case of Commissioner of Trade Tax Versus S/S Krishna Homoeo Formacy, Gorakhpur reported in 2003 U.P.T.C. 919 and in the case of Hamdard (Wakf) Laboratories Versus Collector of Central Excise, Meerut1999 (6) SCC 617 in which Rooh Afza has been held as soft beverages. He also relied upon the decision of M/S Mansarovar Bottling Company Versus CST in Trade Tax Revision No.1161 of 1995 decided on 20th January, 2005 in which Maaza has been held as soft beverages.

Learned counsel for the dealer/opposite party (hereinafter referred to as "Dealer") submitted that the dealer is a unit of Muslim Aligarh University and involved in the manufacture of unani medicines. He submitted that surma is a medicine used in the treatment of eyes, Pyrolene is a tooth powder which is used for the treatment of pyrolia,. Rogan benazir is medicated oil used to give relief in headache, stop sheding of hair etc, sharbat is syrup to cure nazla jukham, therefore, all the aforesaid items are medicines. He submitted that book published by the dealer gives  details about each of the items in dispute. In support of his contention, he relied upon the following decision.

Commissioner of Sales Tax Versus M/S Murari Brothers, Ghaziabad reported in 1979 UPTC 1091 in which Bhimseni Kajal has been held as medicinal preparation, 2003(34) STJ 389 Commissioner of Central Excise, Calcutta Versus Pandit D.P. Sharma in which Himtaj Oil has been held as Ayurvedic medicament, 2004 NTN (Vol.24) 28 (SC), Commissioner of Central Excise Versus Sharma Chemical Works in which Banphool Oil has been held as Ayurvedic medicament, 2004 (24) NTN 222 in which Keo-Karpin hair oil, massage oil and baby Antiseptic Cream has been held as medicinal preparation.

I have perused the order of the Tribunal and the authorities below.

Perusal of the order of the Tribunal and the authorities below shows that none of the authorities have examined the ingredients of the aforesaid four items and their actual uses and how they are known in commercial sense and common parlance. In the absence of ingredients and its actual use it cannot be decided whether they are medicines or cosmetics or toilet preparation or soft beverages or any other item. The matter requires reconsideration. In my view, the product can more be appropriately examined by the assessing authority where the dealer may get proper opportunity to lead the evidence in support of its case and assessing authority on consideration of such evidences may adjudicate the issue.

In the result, both the revisions are allowed. Order of the Tribunal dated 19.07.1996 is set aside and the matter is remanded back to the assessing authority to pass assessment order after in the light of the observations made above.




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