TMI Blog1989 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... such excess has been recovered to obtain a refund from the appellants of such corresponding excess. In the event of any balance of the excess remaining unrefunded by the appellants to the customers upon the expiry of three months from such notice, the balance will be paid over by the appellants to the Arya Vaidya Rama Varier Educational Foundation of Ayurveda. - Civil Appeal No. 1868 of 1974, Writ Petition No. 2729 of 1974 - - - Dated:- 15-3-1989 - PATHAK R.S. C.J.I. AND RANGANATH MISRA JJ. F.S. Nariman, Senior Advocate (C.S. Vaidyanathan and K.R. Nambiar, Advocates, with him), for the appellants. S. Balakrishnan, Advocate, for the intervener. T.S. Krishnamoorthy Iyer, Senior Advocate (A.V. Rangam and T.V. Ratnam, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re shown under item No. 95 and subjected to tax at 7 per cent. The appellants filed writ petitions in the High Court of Madras challenging the levy at 30 per cent on arishtams and asavas, but on 2nd September, 1974 the High Court dismissed the writ petitions. From the counter-affidavit filed by the Government of Tamil Nadu in the writ petition, out of which one of the present appeals arises, it appears that the higher levy of sales tax on arishtams and asavas was introduced by the State Legislature to curb the abuse of medicinal preparations for their alcoholic content by drink addicts and to eliminate the mushroom growth of ayurvedic pharmacies preparing sub-standard arishtams and asavas for purposes other than medicinal use. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d principally as a measure for raising revenue, and it repelled the argument that the rate of tax was discriminatory or that article 19(1)(g) was infringed. It rejected the plea of the appellants that article 301 was contravened and refused to accept that there was any ulterior object in imposing a high rate of tax on those two commodities. Now there is no doubt that arishtams and asavas are ayurvedic medicinal preparations. The question is whether these two medicines attract different considerations from those applied to other medicinal preparations. Reference is made by the State to their high content of alcohol, and that, it is said, attracts a class of customers who purchase them for their alcoholic content rather than their medicinal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a distinction is made between commodities falling in the same category a question arises at once before a court whether there is justification for the discrimination. In the present case, we are not satisfied that the reason behind the rate of 30 per cent on the turnover of arishtams and asavas constitutes good ground for taking those two preparations out from the general class of medicinal preparations to which a lower rate has been applied. In Adhyaksha Mathur Babu's Sakti Oushadhalaya Dacca (P.) Ltd. v. Union of India [1963] 3 SCR 957, this Court considered whether the ayurvedic medicinal preparations known as mritasanjibani, mritasanjibani sudha and mritasanjibani sura, prepared in accordance with an acknowledged ayurvedic formula, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 the circumstances, we do not consider it necessary to enter upon the question whether there is substance in the complaint of the appellants that there is a violation of article 301 of the Constitution. In the result, the appeals must be allowed and the appellants held entitled to a refund of the excess paid as sales tax on account of the turnover being treated under item No. 135 rather than under item No. 95. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
