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TMI Blog1976 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... sputes product). 3.The respondent before us runs a factory near Calcutta known as "Sadhana Ousadhalay" for manufacturing various Ayurvedic medicines. It is not in dispute that in this manufactory he manufactures the disputed product out of basic Ayurvedic ingredients on a traditional formula initially evolved long ago which, it is claimed by him, had devolved from generation to generation on "Guru parampara" basis. Upon the respondent's own admission such a preparation is not manufactured in accordance with the recipe or directions of any recognised Ayurvedic pharmacopoeia. Nonetheless the disputed product is an "arista" group of Ayurvedic preparation. Though "arista" is recognised by the usually recognised Ayurvedic pharmacopoeia, the disputed product is manufactured by the respondent on a traditional formula of his own and not on any formula laid down by those usually recognised Ayurvedic pharmacopoeia. 4.The disputed product admittedly has an alcoholic content though the alcohol is self-generated and is not separately distilled or added in the process of manufacture. It was not subjected to any excise duty under the Bengal Excise Act of 1909. According to the respondent, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in other words, the respondent pleaded that the disputed product would answer the description of the preparation specified in clause (i) of Entry No. 3 and as such would not fall within clause (iii). Such a claim on the part of the respondent not having been accepted by the Superintendent of Excise the respondent preferred an appeal under Rule 127 of the Rules framed under the Act. The Appellate Tribunal, however, refused to accept the respondent's plea and the appeal was dismissed. In so doing, the Appellate Tribunal observed :- "In the absence of any specific classification of this medicinal preparation as an Ayurvedic preparation by the Government of India in a notification, as mentioned above and in the absence of the preparation being noticed in any Auyrvedic Pharmacopoeia in vogue in this State, "Mahadraksharista" of the petitioner's manufacture can simply be considered only as a medicinal preparation which contains alcohol" and not an Ayurvedic preparation. 8.Being aggrieved by the said decision, the respondent moved this Court with the writ petition on which the above Rule was issued. He challenged the orders of the Superintendent and that of the Appellate Tribunal as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends that the disputed product not being noticed by the usually recognised Ayurvedic Pharmacopoeia and not having been manufactured in accordance with the recipe or directions incorporated in such pharmacopoeia cannot be considered to be as Ayurvedic preparation. It is, therefore, claimed that the disputed preparation would fall within clause (iii) of Entry 3 of the schedule to the said Act and the learned Judge in the trial court was wrong in overruling such a view taken by the excise authorities. 10.Mr. Dass, appearing in support of this appeal, has contended that the disputed product, for reasons contended for by the appellant cannot be considered to be an Ayurvedic preparation within the meaning of clause (i) of Entry No. 3 of the schedule to the said Act. 11.It is not in dispute that the disputed product fulfils all other requirements of clause (i) of Entry No. 3 of the said Schedule so that once it is held within clause (i) of Entry No. 3 and not within clause (iii) of the said Entry. It is not in dispute that the disputed product is a preparation whose alcoholic contents is self-generated. It is also not in dispute that such a product is not a notified preparation as capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by such a pharmacopoeia. In our opinion, the disputed product being manufactured out of basic Ayurvedic ingredients in a traditional Ayurvedic process would also be an Ayurvedic preparation as it is commonly treated in the ordinary market. 12.Reliance is placed by Mr. Das on Rules 64 and 65 of the Rules framed under the said Act. The said Rules are set out hereunder. AYURVEDIC PREPARATIONS Types of"64. preparations. - Asavas and Aristas are the principal types of Ayurvedic preparations in which alcoholic content is self-generated and not added as such. Pharmacopoeia for65. Ayurvedic preparations. - Until a standard Ayurvedic pharmacopoeia has been evolved by the Central Government, pharmacopoeias that are in vogue in the various States shall be recognised as standard Ayurvedic pharmacopoeias." 13.These Rules, however, do not advance the case of the appellant in any manner. Unlike the Bengal Rules framed under Section 86 of the Bengal Excise Act these Rules nowhere make it Mandatory that the Ayurvedic preparations must be manufactured in accordance with the recipe or directions laid down in Arkaprokash, Ayurved Sangraha or Vaisaja-Ratnabali. On the other hand, Rule 64 only sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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