TMI Blog1963 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court a statement of the case giving rise to the following question of law: "Whether the preparation of medicines on prescriptions of the applicant amounted to a manufacture of medicines and pharmaceutical preparations' within the meaning of notification no. ST-3504/X dated 10th May, 1956, and whether the applicant was assessable to tax on the turnover of the medicines so dispensed." I have no doubt that the assessee cannot be said to be a manufacturer of the medicines. "Manufacture" has been interpreted in a wide sense by a Bench of this Court of which I was a member in Badri Prasad Prabha Shanker v. Sales Tax Commissioner, U.P.[1963] 14 S.T.C. 208. However wide a meaning may be given to the word, I do not think it includes preparati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be more than one point of sale and the State Government could not have intended that the notification issued by them under section 3-A could cover them. In other words, preparing medicines according to the prescriptions could not have been intended by the State Government to come within the word "manufacture" as used in the notification. There cannot be a manufacture unless the resulting produce is a commercially different article. When the assessee mixes together the ingredients mentioned in a prescription and supplies the mixture to the patient he does not produce an article commercially different from the ingredients from which it is produced. The resultant article has no name other than "mixture " and a "mixture" cannot be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd why the Judge (Revisions) referred the second limb of the question if all that was argued before him was whether dispensing prescriptions amounted to manufacturing medicines. It would have sufficed for the purpose only to refer the first limb of the question because if this Court answered it in the negative he would have to set aside the assessment order according to the (erroneous) view of the state of the law that he took. He thought that the assessee was liable to sales tax only if he was a manufacturer and did not consider that he was liable otherwise under section 3. But he has referred the second limb of the question and it cannot be said that it does not arise because every order under section 10 deals with the assessability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged his assessability on the irrelevant ground that he was not a manufacturer. The notification did not apply to him when he himself claimed that he was not a manufacturer. When the notification did not apply to him there was no question of his taking any plea based upon it. Section 3 could apply to him and if he was not liable under it also, it was for him to take this plea. But he never challenged his liability under section 3 and it must be held that he could not challenge it on any ground. He cannot contend that he cannot be held liable under section 3 because he has not been so far held liable under that provision. He does not get immunity from the liability under section 3 just because he has not been held liable under it so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Uttar Pradesh and not with all medicines. The notification is that only certain medicines, e.g., "medicines ..... manufactured in Uttar Pradesh shall not be liable to be taxed except" and not that (all) "medicines shall not be liable to be taxed except". It is this distinction between the two sets of words that was lost sight of by Sri Jagadish Swarup when he advanced the contention. The notification applies only to medicines manufactured in Uttar Pradesh and not to others which are left to be governed by section 3. The medicines sold by the assessee not being medicines manufactured are not governed by the notification and must, therefore, be governed by section 3. The second limb of the question must, therefore, be answered in the affir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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