TMI Blog1997 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... be called a medicament at all? Is it used to cure or alleviate or to prevent disease or to restore health or to preserve health? Are these products treated as drugs or medicines in common parlance? These are basically questions of fact. There was no reason for the assessee-company to by-pass the statutory remedy and come to the Court with a writ petition. These questions basically of fact should be agitated before the statutory appellate authority. Thus the assessee should not have been allowed to by-pass the statutory remedies where the questions of fact could have been properly agitated and ascertained.The appeal, therefore, is allowed. The impugned order of the High Court is set aside. - Civil Appeal No. 2461 to 2463 of 1988 W.P. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 4 per cent on the sale of the goods and also local sales tax at the rate of 6 per cent from 1-11-1981 to 1-4-1987. 4By another Notification No. 5/5/87 (R. C)-8, the State of Goa in exercise of the powers under Section 10 of the local Sales Tax Act, amended the Second Schedule to the local Sales Tax Act, inter alia, inserting Entry No. 77 which speaks of ``drugs and medicines, including all I.V. Drips''. By the said notification, the goods were totally exempted from levy of the local sales tax, and consequently. The Sales Tax Authorities, ceased to collect Central Sales Tax from 2-4-1987 on the above mentioned products or goods manufactured by the assessee-company. 5Further, the case of the assessee is that the. sales tax payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake of law and collected by the State without the authority of law. On behalf of the State, however, it was contended that the products were not ``drugs and medicines'' and as such no question of refund of tax paid did arise. The Court formulated two questions which had to be decided in the writ petition. The questions were : ``(a) Whether the products manufactured by the petitioners and listed in the paragraphs 2 and 4 of the petition are `drugs and medicines' within the purview of the aforesaid Notification No. 14/41/81-Fin. (R C) and No. 5/5/87 (R C)-8 and (b) whether the petitioners are entitled to the refund sought''. 8After a long discussion about the nature of the. products of the assessee-company and after referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a medicine? Will the position be different if the bandage is medicated? These questions cannot be decided by reference to any definition of the Drugs and Cosmetics Act or product control licence issued by the Drug Controller. There is no definition given in the local Sales Tax Act or in the Central Sales Tax Act of these terms. It has to be found out how these products are understood and treated in the market. In the ordinary commercial sense, are these articles considered as drugs or medicines? These are basically questions of fact. 11 In fact, the difficulty of defining what is. drug and medicine was discussed in the case of Customs and Excise Commissioners v. Beecham Foods Ltd., (1972) 1 W.L.R. 241 (H.L.) where the question was whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne'' in the following manner : ``What then is medicine ? The learned judge (1969) 1 W.L.R. 1518, 1527 pointed to a dictionary definition of medicine (when used in a sense other than a substance) as : ``The science and art concerned with the cure, alleviation, and prevention of disease, and with the restoration and preservation of health.'' In line with the learned judge I think that a fair approach is to regard a medicine as a medicament which is used to cure or to alleviate or to prevent disease or to restore health or to preserve health.'' 14Lord Wilberforce who agreed with Lord Reid,. pointed out that the fact that a drug was present in something did not convert that preparation as a whole into a drug. Merely because Vitamin C was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution.'' 17 We are of the view that the assessee should not have been allowed to by-pass the statutory remedies where the questions of fact could have been properly agitated and ascertained. 18 The appeal, therefore, is allowed. The impugned order of the High Court is set aside. 19The assessee-company will be at liberty to prefer appeal against the assessment order in accordance with law wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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