TMI Blog2010 (6) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... re of product viz., "medical oxygen" has been noted, it would travesty of justice to still hold that would be falling under the category of 'gas' and not under the category of Entry 95, 20-A of Schedule-I in the year 1991 to 1993. Therefore, the ultimate conclusion of the Tribunal in the orders impugned in setting aside the order of the Appellate Assistant Commissioner, cannot be found fault with. We are not therefore, inclined to interfere with the said order. Moreover, the said issue is directly covered by the decision of Kerala High Court in 139 STC., 504, supra. as the provisions are pari materia. In the said circumstances, applying the said decision also we have no hesitation to hold that the "medical oxygen" would fall only under Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 1991 (5-9-91) Schedule I (Part-I) Entry 95 Rate 6% Drugs, Patient or Proprietary Medicines as defined in section 3 of the Drugs and Cosmetics Act, 1940; or Medicinal Mixtures or compounds, the components of which have not already suffered tax, and including surgical dressing. 1993 (I (Part-C) Entry 20-A) Rate 5% Medicines conforming to the following description. Any medicinal formulation or preparation ready for use internally or externally for treatment or mitigation or prevention of diseases of disorders in human being or animals (excluding products capable of being used as creams, hair oils, tooth paste, tooth powders, cosmetics toilet articles, soaps and shampoos) but including i. Allopathic Medicines ii. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd round since on the earlier occasion by order dated 10.9.1997 passed in O.P.Nos.3097 and 3098 of 1997, the Tamil Nadu Taxation Special Tribunal, while setting aside the earlier assessment order, directed the Assessing Authority to apply the principles laid down in the decision of the Honourable the Supreme Court in STATE OF GOA V. LEUKOPLAST (1997 - 105 STC., 318) before passing the order of assessment in order to find out whether the medical oxygen falls within Entry 95 for the year 1991 or Entry 20-A for the 1993 or Entry 106 for the year 1991 and Entry 25 for the year 1993, as specified in the above referred to Entries. The rate of tax would be 6% or 5% fixed for the relevant years if the item medical oxygen is governed by those e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted Section 12(3)(c) of the Tamil Nadu General Sales Tax Act. 6. Assailing the order of the Tribunal, learned Special Government Pleader would contend that the medicinal oxygen is nothing but 'gas' and therefore, it would fall within the definition of 'gas' as notified in Entry 106 of Schedule-I and Entry 25 of the same Schedule in the years 1991 to 1993 respectively. Learned Special Government Pleader sought to distinguish the direct decision of the Kerala High Court in SOUTHERN GAS LTD. v. STATE OF KERALA (2005 - 139 STC 504) finding that Entry 106 is only the exclusion to the specific item 139 which refers fuel gas including Liquefied Petroleum Gas all other gas items including oxygen fall within the expression gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guided by the definition of 'drug' as it is defined in the Drugs and Cosmetics Act, 1940. The definition in the said Section reads as under: 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 intended to be used for the destruction of (vermin) or insects which cause disease in human beings or animals, as may be specified from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned; (ii) Further its curative function has to be found out to decide whether the product can be called a medicament at all. (iii)Finally, it should be verified as to whether it is used to cure or alleviate or to prevent disease or to restore health or to preserve health hazard. 10. Having regard to the use of medical oxygen to a patient, as rightly concluded by the Additional Appellate Assistant Commissioner, the medical oxygen would positively satisfy the above three tests laid down by the Honourable Supreme Court. Therefore, when once the said findings of the Appellate Assistant Commissioner, as regards the nature of product viz., medical oxygen has been noted, it would travesty of justice to still hold that would be falli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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