TMI Blog2003 (9) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the assessee, the assessing authority passed a revised assessment order dated July 22, 1992 (annexure A) under which "medical oxygen" was assessed at the rate applicable to "gases liquefied or not " at 8 per cent under entry No. 85 of the First Schedule to the Act which came into force with effect form July 1, 1987. The assessing authority took the view that the Notification G.O. (Rt.) No. 242/84/TD dated April 2, 1984 did not survive after the introduction of entry No. 85 of the First Schedule to the Act. The assessing authority also took the view that the subsequent Notification S.R.O. No. 976/89 had effect only from June 13, 1989 and therefore for the period from July 1, 1987 to June 13, 1989 "medical oxygen" has to be classified only as a "gas" as specified in entry No. 85 of the First Schedule to the Act. The contention of the assessee that "nitrous oxide " is a "medicine" was also rejected by the assessing authority by stating that it is sold by the assessee in gaseous form and this also is liable to be assessed at the rate applicable under entry No. 85 of the First Schedule to the Act. 3.. In the appeal filed by the assessee the Additional Deputy Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1990] 79 STC 351 and the decision of this Court in State of Kerala v. India Oxygen Ltd. [2003] 129 STC 471. The counsel, in short, submitted that the assessing authority and the two appellate authorities had erroneously held that these two items would fall under entry No. 85 of the First Schedule to the Act. 7.. Learned Government Pleader appearing for the respondent, on the other hand, submitted that these two items would squarely fall under entry No. 85 of the First Schedule to the Act which deals with all gases not elsewhere provided. The Government Pleader submitted that the expression "other than those specified elsewhere in this Schedule" in entry No. 85 deals only with other gases such as petroleum gases, etc., and not with reference to medicines. The Government Pleader submitted that going by the common parlance theory also "medical oxygen" and "nitrous oxide" both being gases, are understood only as gases and the assessing authority and the appellate authorities have rightly found that both the above items are liable to be assessed at the rate applicable to gases under entry No. 85 of the First Schedule to the Act. 8.. We have considered the rival submissions and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this question in paragraph 4 onwards of its order and the Tribunal was carried away by the Notification S.R.O. No. 976/89 and S.R.O. No. 369/92. According to the Tribunal, the Government understood "medical oxygen" as one falling under entry No. 85 liable to be taxed at the rate of 8 per cent and that it is only for giving some relief so far as "medical oxygen", the said notifications were issued reducing the rate of tax from 8 per cent to 6 per cent from June 13, 1989. It is in that view of the matter the Tribunal has taken the view that "medical oxygen" would fall under entry No. 85 of the First Schedule to the Act. The Tribunal also held that the earlier notification issued in 1984 ceased to have operation after July 1, 1987 which substituted entry No. 85 by which gases liquefied or not other than those specified elsewhere in the Schedule are brought to tax at 8 per cent. So far as clarifications/ circulars issued by Government are concerned, they merely represent their understanding of the statutory provisions but they are not binding on the courts. There cannot be any estoppel against the statute. Law is what is declared by the Supreme Court and the High Court as to what a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5] 60 STC 213 (SC); AIR 1985 SC 1293. 15.. There is no definition of the word "medicine" in the Act nor any judicial interpretation given to the said word was brought to our notice. Black's Law Dictionary defines the word "medicine" thus: "Medicine.-The science and art dealing with the prevention, cure and alleviation of diseases; in a narrower sense that part of the science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician. Bruke v. Kansas State Osteopathic Ass'n., C.C.A. Kan, 111 F.2d 250, 253. The term is not limited to substances supposed to possess curative or remedial properties. People v. Kabana 32 III APP. 158, 52 N.E. 2d 320." Mitra's Legal and Commercial Dictionary by A.N. Saha gives the meaning of the word "medicine" thus: "Medicine" or "drug" includes- (i) all medicines for internal or external use of human beings or animals, (ii) all substances, intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals, (iii) all substances intended to be used for or in the maintenance of public health, or the prevention or con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself says "other than those specified elsewhere in the Schedule" which would mean that if any item of gas specifically falls under any other items in the First Schedule to the Act then such gas would not fall within entry No. 85 of the First Schedule to the Act. "Medical oxygen" and "nitrous oxide" are not specifically mentioned in any other entries in the First Schedule to the Act. The contention of the Government Pleader is that the expressions "not elsewhere" provided is with reference to the petroleum products particularly entry No. 140, sub-entry (xxii) and otherwise. However, we have taken the view that those two items would fall under entry No. 116 of the First Schedule to the Act-"medicine". 18.. In a case where an item falls under two entries in the Schedule in order to decide the taxable entry the question is as to which of the two is the special entry, for the special entry will exclude the general entry. [Importex International (P) Ltd. v. State of Kerala [1991] 81 STC 351 (Ker) and Deputy Commissioner of Sales Tax v. Food Specialities Ltd. [1991] 82 STC 298 (Ker)]. The Karnataka High Court in Indian Oxygen Ltd.'s case [1990] 79 STC 351, took the view that "medical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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