Adhyaksha Mathur Babu'S Sakti Oushadhalaya Dacca (P) Ltd. and Others v. Union of India

Waneltoo J. tci medicinal and toilet preparations, the position

under the Government of India Act would continue and the States ,would have the power to continue levying duties of excise on medicinal and toilet preparations to the sam" extent to which they were levying them immediately before the commencement of the Constitution. In 1955, Parliament ·passed . the Act for levy of duties of excise on medicinal and toilet preparations. This Act was brought into force from April I, 1957, and the oonsequence of this enactment waR that the power of the States to leavy duties any further <in medicinal and toilet preparations came to an end in view of· Art. -277 of the Constitution. There can in our opinion be no doubt that Art. 277 which saved the power of .the States to levy duties of excin etc. which came in the Union List on the passing of the Constitution is no longer applicable' as soon as l'arliament makes a provi-sion to the contrary. Once therefore a provisi·on to the contrary is made, the saving provided in Art. 277 comes to an end and thereafter the State-Governments cannot continue to levy any duty which they might have been levying by virtue of Art. 277 till provisioJ? to the contrary was made. Further, this conclusion which follows from Art. 277 is made perfectly clear by s. 21 of the Act, which provides that "if immediately before the commencement of the Act there is in force in any State any law corresponding to this Act, that law is hereby repealed". The effect of ·this repeal is that the JJ:xcise Acts of the various States under which duty was being levied on medici.nal and toilet preparations containing alcohol must be deemed to have been repealed, in so far as they apply to such medicinal and toilet preparations. It is not neces- ,idhyahlla Mathur Babu's Sokti 1sary that the State should have had a separata law OushadhalayiJ, for levy of duties of excise on medicinal and toilet Dace• (P) Ltd. v. preparations, for the repeal in s. 21 of the Act to Union of India comB into effect. The Excise Acta 0f the various Wonchoo J. States were undoubtedly law under which duty was being levied on medicinal and toilet preparp,tions containing alcohol and those Excise Acts must be deemed to correspond to the Act for the purposes of levy of duty on medicinal and toi1et preparations and must be held to have been ret;ealed by !L 21 so .far a.s medicinal and toilet preparations were con-cerued. It is urged on behalf of the State of Bihar that the purpose of the Excise Acts in States was not meno,Jy to raise revenue which was a secol'dary consi-deration but to regulate the .consumption of liquor and for that purpose the various Excise Act of the States imposed a heavy duty to reduce consumption. Further, it is urged that the purpose of the Act is only to impose duties for revenue purposes and it has nothing to do with the regulation of con-sumption of liquor and reduci.ng such consumption.

Therefore, the excise Acts of the various States when they impose duty. of excise on mec!icinal and toilet .preparations had two purposes,. namely, (i) to raise revenue and (ii) to reduce consump-tion of liquor, and therefore the Excise Acts of the various States cannot be said to be correspon-ding law which has been repealed by the Act which has only one purpose namely raising of revenue. We have not however been able to under· 11tand how any purpose behind a fiscal measure can have any relevance .on the question of cor-res- - pondonce. Various Excise Acts of the States in so far as they impose duties on medfoinal and toilet preparations containing alcohol are fiscal statutes far taxing these preparations. Now, the Act

970 SOPREME COURT REPORTS [1961]

is a fiscal statute for taxing these preparations enaotAd by Parliament under entry 84 of List I Aih,alt.JhfJ JI. •thur of the Seventh Schedule to the Constitution, and

B.J~u'1 ~·al.ti Oushadhalay• therefore the Excise Acts which were the corres-ltcaa (P) Ltd. ponding taxing statutes for these preparations

Y.

lini•n •/ lnii" must be held to be repealed so far as taxation on these preparations is concerned. 'There can there-rra:ncho1 J. fore be . no doubt that there is correspondence bstween . the Act and the various Excise Acts of the various States in so far as levy of duty on medicinal and toilet preparations is concerned and s. 21 of the Act repe<tls all the Excise Acts of the States so far as such levv is concerned. There can thus be no question of medicinal and toilet preparations being liable to duty under the Act as well as the various Excise Acts iu force io the States.· This contention is hereby rejected. The next question is whether these three preparations are medicinal preparations as defined in the Act in e. 2 (g). 'l'he definition is an inclusive one and includes "all drugs which are a remedy or prescription prepared for internal or external use of human beings or animals and all substances in- : tended to be used for or in the treatment, mitigation ' or prevention of disease in human beings or animals". According lo the West Bengal Excise Rules, which deal with the manufacture of these three preparations; it appears that the preparations are to be made accordin~ · to the recipe and direction laid down in Arka Prakash, Ayurved Sangraha, and Bhaisajya Ratnabali, and have to be manufactured only in bond by a qualified Kabiraj or by a Kabiraji fir.m having a qu:tlified Kabiraj for supervision of the manufaoutring operations. Further, the alcoholic content of the preparations must be below 42 per centum. According to the recipe found in these Ayurvedic books, the basic ingredient out of which these preparations are manu-factured is gur; besides gur th.ere are 42 other iagre· .AdhyakJha Mathur dieats which have to be mixed. These ingredients Bal>.u' s Sakti are medicinal drugs according to Ayurveda.. In Oush•dhala>a Dace• (P) LU. addition to these ingredients, water is also mixed v and the whole mixture 'is kept sealed for 20 days, Union of Iniia presumably for the purpose of fermentation and Wanch•o J. thenafter the preparation is obt,ained by distilla-tion and a.l!l already stated contains about 42 per centum of alcohol. Further, according to these books, the preparation is used as a tonic to build body ~nd physique, to increase strength and appetite &nd to make ~ppearance healthy and bright. It is ~lso used in Sannipat Jwara (typhoid fever) in critical stages. It .is also prei.-cribed for cholera in frequent doses and finally is used in all conditions of co1Ja pse. The coun ter-a:ffid~ vi ts filed on· behalf of the Cnion and the States which are opposing these petitions do not definitely state that these preparations are not medicinal preparations. For example, in the affidavit of the State of West Bengal, it is stated that it is not admitted· that these prepa:·ations are exclusively for medicinal purposes. It is alroo stated that these alcoholic preparations are capable of being msed as ordinary 3lcoholic beverages. Similarly, in the ~ffidavit of the Union, it is stated that it is not admitted that the preparations ar9 efficacious remedies for any human. ailment. On the other hand, a number of affida vi'ts have been filed on behalf of the petitioners from registered Kabirajas to show that these pre-parations are manufactured according to the three .Ayurvedic books already· mentioned and are uaed for certain diseasea incluaing choler&. The respon· dents, however, rely on the advice of the Standing Committee consisting of the Drugs Controller of the Government of, India and the Chief Chemist, Central Hevenues Control Laboratory, which was of opinion a.fter examining the formulae anq the

analytical data and the claims given on the label of the preparations and also after carrying out tasting AcJ?!,olsha Mathur

'Babu.'s Sahli test, that thesc;i three preparations should be consi-OushadhaJpa .. dered straight forward beverages and not as paaa (P) Ltd,

medicinal preparations. It was in · consequence of Un ion of lr.dia \this decision that these three preparations were Wanc%oo ,1. taken out of the list attached to the Rules framed

under the Act. The two members of the Standing I Committee do not ·appear to be experts in Ayur-

vedio medicines apd no affidavit has been filed of any ayurvedic exper·t on behalf of the respondents. There seems no ·reason therefore not to accept the affidavits filed on behalf of the petitioners from qualified Ayurvedio practitioners: series F to F 16. These _ Ayurvedic practitioners are not connected with the petitioners and what they say in their affidavits is iu accordance with the use to which these preparations can be put as medicines according to the three Ayurvedic text books already referred to. In these circumstances it would in our opinion be impossible to say that these preparations a1 e 'not remedies prepared for internal use of human bein1rn and are not intended to be used for or in the treatment, mitigation or prevention of disease in human beings. If therefore they are a remedy prepared for internal use of human beings and are I intended to be used for or in the treatment, miti-

gation and prevention of disease in human beings, they would clearly be medicinal preparations within the ineaning of s. 2 (g) of the Act; and if so, they would be liable to be taxed under the Schedule to the Act and not under the various Excise Acts of the different States concerned. It is only neces-sary to add,. that the definition of "medicinal prepa.ration" contained ins. 2(g) of the Act, does not depart from the meaning 'of that expression when it occurs -in item .. 84 of List I, and hence on the Act coming into force, the States lost the power to levy excise duty ·on theae preparations. ·

:rs.Q.R. SUPREME COURT·REPORTS 973

We may in this connection refer to the coun-1962 J ter-affidavit filed on behalf of the State of Uttar ·--

Pradesh, where it has been stated that on the Adhyalsha.Mathur Babu's Sa!li basis of the formulae alleged by' the petitioners in Oushadhalaya the Schedules, no standard medicinal preparation Dater• (P) Lid v. can be prepared as the mode of preparation con· Unisn of lmlia travenes all settled laws of biochemistry. This has been sworn by an Excise InspPctor of the Excise Wanchoo J. and Intelligence Bureau of the State of Uttar Pradesh. It is not clear however from the counter· affidavit what. qualifications the deponant has to make such a statement, nor are we able to unde"r-stand which laws of biochemistry are contravened by the mode of preparation prescribed in the three Ayurvedic text books already referred to. As against this, we may refer to the report of the C~opra Committee on Indigenous Drugs of India. In para. 265, the Committee says that in different parts of India, as many as 900 indigenous drugs (vegetable, mineral and metallic) and over 100@ preparations made from these drugs are used by the I Ayurvedic physicians, and "there seems to be little doubt that out of the large number of drugs used by the Hindu physicians for centuries past and still in use, there are. some that deserve the reputation they hava earned as cures". In para. 266, the Committee points out the difficulties in the way of assessment of the proper value of indigenous drugs.

These difficulties are ·of two kinds; firstly, the modern scientists are not acquainted with the exact connotation of terms of Indian pharmacology, and secondly, whereas western medicine tries to explain the action of a drug in terms of its chemical com po· nents, such as alkaloids, glucosides, esEential oils, antibiotics, hormones etc., Indian medicine takes into account the action of the drug in its entirety, as they hold that the action of the whole drug is often _different from that of any one of its consti-tuents considered separately. The Committee further says that there is a good deal of trnth in this

974 St:YPREME COURT REPORTS [1963]

assertion. In Para. 268, dealing with compound Adhya'luha Malhur preparations, the Committee mentions another

Babu~• Sakti difficulty that usually confronts pharmacologists Oushadhala)a in the problem of investigating the value of 1acca (P) L,d.

y. compound medicines which are more frequently U "'on of lni'a used than single drugs. It further points out Wanchoo J. that "the investigation of tho pharmacological

properties and therapeutic value is considered to be more in the particular combination than that of any one of the ·drugs taken separately. They therefore urge on the need for an investigation into the combination as a whole. But, for this, no modern methods are as yet available.

These observations of the Chopra. Committee will show that the claim made in the counter·a.ffi-davit. filed on behalf of the State of Uttar Pradesh based on the so-called settled laws of biochemistry cannot be accepted-at any rate with respect to oompound preparations like the three under consi-deration, for the research on Ayurvedic medicines has been so far very little. Reference may also be made to the report of a Committee known as Udupa Committee with respect to the Ayurvedic system of medicines. At p. 132, the Committee observes, on the question of the enac~ment of a Drugs Act for Indian medicines that the Central Government do not have any technical person who has detailed knowledge Ayurvedic drugs, though there are a large number of Ayurvedic scholars on the pharmacy side whose help can be taken in drafting the necessary bill. In this conuection, the Committee suggested that an adviser ou Ayurvedio drugs should be appointed for this purpose immediate-ly, who should have under him an Ayurvedic Drugs AdvisOI"y Committee, and this will facilitate the drafting of the legislation the Committee had in mind and also help the Government to decide disputed points a.bout Ayurvedio drugs and medicines which were now cropping up frequently. This Committee wae constituted in July, 1958, and it does not appear 1962 that any action on the lines suggested. by the Committee was taken by the Government of India.. Mhyak•h• Ma1hur Babu' s Saki I In these circumstances we have on the one side Oushat•Ml<!J• the three standard Ayun: edic books according Daci;a ( P) Lid. t~xt v. to which these preparations are. prepared; we have Uni1n· •!!~Ilia also the aff'idavits of a large number of Ayurvedic practitioners of obvious repute to the effect that Wanoh111 J these preparations are medicinal preparationll which are· used to alleviate human suffering in· certain conditions. On the other hand, there is no affidavit from an Ayurvedio expert on behalf of the respondents. We may however in this connec-tion refer to an affidavit of the Assistant . Chemic:al Examiner to the Government of West Bengal who is experienced in examining to and analy-sing alooholic liquors. According him, the chief basis of ·these three preparations is molasses and gur, which is a fact as we have already pointed out from the recipe in the Ayurvedic text books.

He further says that in these three preparations there are several steam volatile products, namely, forfural, aldohydes, ketones and acids but the presence of the same does not destroy or minimise the effect of alcoholic intoxication of these preparations. He further says that the taste or smell of these perparations does not make them ·unfit for drinking in a large dose and they can be used as an alcoholic beverage. Even this affidavit does not say that these are not medicinal preparations. All that it says is that these pr~pa.ra­ tions contain about 42 per centum of alcohol and can be used as ordinary alcoholic beverages. So if these preparations are medicinal preparations but · are ~lso capable of being used as ordinary alcoholic beverages, they will fall under the Act and wilJ be liable. to duty under item No. l of the Schedule at the rate of Rs. ~ 7. 50 nP ·per gallon of the strength of London proof spirit. On a consideration of the material that bas been placed· before ue, ' ·. .-.. I therefore, the only conclusion to which we can

oome is that these preparations are medicinal Adh)l.aikaA11 Ma~lrur preparations according to the standard Ayurvedic

Babu's 8tJlzti Oushfldlroltsy& text books referred to already, though they are DatctJ (P) Ltil. also capable of being used as ordinary alcoholic

v.

Union of India ' beverages. They wil.l therefore clearly fall . within Wo111hoo J. the definition of "medicinal preparation" and

would be liable to duty under item 1 of the Schedule to the Act. So far as the decision of the Standing Committee is concerned which resulted in the omission of these three preparations from the list attached to the Rules, that is not conclusive on the question whether these are medicinal preparations or not •. Further the fact that these preparations are omitted from the list attached to the Rules would make no difference to their being medicinal preparations within the meaning of the Act, liable to duty under item 1 of tbe Schedule, if they are in fact medicinal preparations as we hold them to be. They will therefore be liable to duty under item 1 of the Sohedule to the Act as they undoubtedly fall under that item and are capable of bein~ consumed as ordinary alcoholic beverages. They cannot however be taxed under the various Excise Acts in force in the concerned States in view of their being medicinal preparations whh~h are governed by the Act.

Lastly, it was urged on behalf of the respon-dents that these preparations are not prepared according to the formulae in the Ayurvedic text books referred to above. That is a question of fact which it is not possible for us to decide on the materials placed before us. The averment in this oonnection on behalf of the respondents is also not categorical; for example, it has been stated on behalf of the Union of India that it is not admitted that these preparations are prepared according to the specifications. by utilising the proper ingredients and are· manufactured according to the recipe and direction given in the Ayurvedio text books referred to above. Nothing has been brought 1961 on the record to show that these preparatfons were analysed and the analysis showed that the ingre-Adtuaksha Mathur Babu's Safcti dients mentioned in the Ayurvedic text books were OushadliatYa not present in the preparations. Besides, as it Dacca ( ~) Lid, v. appears from the West Bengal Rules (ref. West U11ion of India Bengal Excise Compilation, Pt. 2) which we have· Wanc~oo ,T. quoted above, these preparations are prepared in bond and there are various restrictions before the issue of the preparations by the manufa.cturer.

Nothing has been said to show tha.t these prepara-tions are not in fact made in accordance with the direction conta.ined in the Ayurvedic text books.

If this was not so, the excise staff would be there to check their preparation. As a matter of fact the first rule with respect to the manufacture of these preparations in the West Bengal Excise Compilation lays down that they will be prepared according to the recipe and direction in Arka Prakash, Ayurved Sangraha and Bhaisajya-Ratna-bali; and if that rule is being disobeyed we shou'd J have expected some-one to swear that though the

rule says that the. preparations shoqld be made according to the directions in these text books, they are in fact not so made. Further if the rule is· being contravened, there .must be power in the Mate-Government to take action against those who contravene the rule. But nothing has been brought to our notice to show that any action has been taken. In these circumstances we. are not prepared to hold that these preparations are not prepared aacording to the Ayurvedic text books;

and in any case our decision holding these three preparations as medicinal preparations is based on these preparations being made in accordance with the directions contained in the Ayurvedic text books and also in accordance with the Rules in the West Bengal Excise Compilation. We presume that tQ.e same must be the state of affairs in other States , ,. ' - . . ' , ' , ' , • ' , '•.·v

978 SOPREME COURT REPORTS [1963]

• 19~1 where these preparations are manufactured, though

· it appears that the petitioners in. the present case .4J1Jak•hs A-fathur are mostly from Calcutta and the maimfacture in

Ba.bu' s Sakti Ousha.dhal •Y rJ these case~ must be going on Calcutta.

Due. ( P) Lid • .

v. We therefore allow the petitions and direct Union of India that these three medicinal preparations should not W•ncllooJ • . - . be taxed under. the various Excise Acts in force in various States and can only be taxed in accordance with the provisions of the Medicinal and Toilet. preparations (Excise Duties) Act. \Ve pass no order as. to the .claim for . refund for that is a matter which the ·petitioners can take up with the State . Governments concerned according to law. ·The petitioners will get their costs from the respon· dents-one set of hearing fee: .

· Petitions allowed.

1962 BRIDGE & ROOF CO.· (INDIA) LTD.

Stpkmbtr JJ. ' v.

UNION.· OF INDIA

(B. P. i'rNHA, C. J., fl. J. IMAM, K. SunnA _RAo, ! K. N. WANCHOO, J. C. SrrAH and N.

RAJAGOPALA AYYANGAR, JJ.)

Emplovees Provident Fund-Bonus-Whether excepted · .. from definition of •Bade Wages'-Contribution-Tl'htlh•r to be paid an bonus-Bonu•, whether drnotes, only Profi! Bonus-- Otntral Goi·ernment Order Validit.11-Employees Provident Fund Act, 1952 (19 of 1952), ss. 2(b), 5, 6, 19A.

The petitioner No. I i~ a p_ublic limited compa~~ eng- - aged in a manufacture of cng1necr1ng goods. In add1uon to basic wages and dearness allowance p~yable by pet1 ti oner . No. I it has introduced two Production bonu! ·schemes. Certain difficulties and doubts having arisen on the question-whether production bonus could be taken into cc:>nsi<Jera\iop in calculatin.g the contributi.on under s. 6 of the

ORIGINAL JURISDICTION: .Petitions Nos. 344 and 350 to 354 of ID61. .

\. of Petitions under Art. 32 I he Constitution o! India for enfrrconent of fundamental rights.

A. V. Viswanatha Sastri,· A.N. Sinha, N. H. Hingorani and B. P. Jha, for the 0 petition~r1.

B. Sen and R. H. Dhebar, for the respondents ·Nos. I, 2 and 7 to 8 (in all the petitions).

-B: Sen, 8. 0. Bose and P. K. Bose, for the respondent No. 3. _,

Lal Narayan Sinha, D. P. Singh, M. K. ·19§t Ramamurthi, R. K. Garg and S. O. Agarwala, for h.>aksha JL at/ntr respondent No. 4. B' h's II•kli Ou1halilt•/&'o Diec~ (P) .Lti. K. S. Hajela and 0. B. Lal, for respondent v. No. 5. C..~ni n u t

Ranadtb Chaudhuri, L. R. Das Gupta, S. N.

Andley and Rameshwer Nath, for the intervener.

1962. September 7. The Judgment of the Court was delivered by

W .ANCHOO, J.-These six peti,tions under Art. 32 of the constitution raise a common point and will all be dealt with together. ']he ma,in question raised in these petitions is whether the State-Governments are entitled to tax the three Ayurvedic preparations, n&mely Mirtasanjibani, Mritasanjibani Sudha and Mritasanjibani Sura, which are manufactured by these petitioners, under the various Excise Aot in forne in the respective· StatEs. Further points were raised in the petit,ions as regards the validity of the restrictions imposed in the matter of the . import, export, possession and sale of these three Ayurvedic preparations. But the learned -counsel for the petitioners sta.ted before us that he was not pressing any other point except one viz., whether the various State-Governments could tax these three· Ayurvedic preparations under the various E:x:cise Acts in force in the States concerned. We propose therefore to deal with this point only in the present cases.

The case of the petitioners is briAfly this. They carry on business as ·manufacturers of medicinal preparationa, according to the Ayurvedie system of medicines and among the Ayurvedio medicines manufactured by them are these three preparations.

These Ayurvedic preparations are manufactured by the . process of fermentation and distillation. in accordance with the AymTedic system of 11',ledicine

1962 following the formula in standard book!i known as

Ayurved Sangraha, Bhaisa,jya RatnabaHand Arka Aih:t•kaho Mathur Prakash. These books, according to the petitioners,

&hu's Sakii Ou1hdft(P'fCJ contain extracts from all authoritative ancient Dam ( P) ·Ltd, · Ayurvedic treatisea accepted throughout India &nd

v« Unien of India are in vogue as Ayurvedic pharmacopoeias in the

w ... various States. Though the three preparations

i..oJ, have three different names they are in reality only one medicine and are prepared according to a single formula in these books. The petitioners aver that these three preparations are manufac-tured in accordanoe with the standard Ayurvedic pharmacopoeias in vogue in various States and are efficacious amongst otherM in the following diseases:· (a) in typhoid fever (Sannipatik Jwara) during '. collapsed condition;

(b) in cholera;· (c) in ca.se of loss of appetite to increase power of digestion; · / (d) In rheumatism, sciatica etc., and (e) to remove weakness, impart strength and vigour and also as a general tonic -and restorative for convaleseent patients. Before the Constitution came into force, all these three preparations were Jia hie to Provincial excise duty under item 4() of List II of the Seventh Schedule to the Government of India Act, 1935. The Constitution however made a change in the three legislative Lists with respect to excise and under item 51 of List Il of the Seventh Schedule the States have the power to levy excise duty on alcoholic liquor for human consumption and on opium, Indian hemp, and other narcotic drugs and narcotics but not including medicinal and toilet pre-· partions containing alcohol or any substance like .opium etc. Further, under item. 84 of List I of the Seventh Schedule the Union has the power to impose 1~63 duties ot' excise on tobacco and other goods manufac-tured or· produced in India except (i) alcoholic Mhyoksha Mathur liabu's Sakti liquors for human consumption and (ii) opium, ·Oushodha/o_ya Indian hemp and other narcotic drugs and narcotics, Dacea (P) Lit/. v. but including medicinal and toilet preparations con-Union of lttdio taining alcohol or any substance like opium etc. Thus the Constitution took away the power of the States Wancho• J. . to impose duties of excise on medicinal and toilet preparations containing alcohol or any substance like opium etc. and give that. power to the Union. How-ever, Art. 277 of the Constitution provided that "any taxes, duties, ceases or fees which, immediately before the commencement of this Constitution were being lawf'Qlly levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other loc(tl area may, notwithstanding tha.t those taxes, duties, ceases or fees are mentioned in the UQ.ion List, continue to be levied and . to be applied to the same purposes until provision to the contrary is made by Parliament by law". In view of this Article, the State Governments continued to levy excise duties on medicinal and toilet prepara-tions containing alcohol, opium,, etc., till 1957 as Parliament bad made no law to the contrary till then. In 1955, however Parli.ament passed the Medi-.

cinal aµd Toilet Preparations (Excise Duties) Act, No. 16 of 1955, hereinafter referred to as the Act) which was brought into force from April 1, f957.

We are in the present case concerned only with medicinal preparations anP, a -"medicinal prepara-tion" is defined in s. 2(g) of the Act as. including "all drugs which are a remedy OJ'. prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or preven-tion of· disease in human being or animals."

Section 3 provides for levy of duties of excise at the rates specified in the Schedule, on all dutiable goods

962 SU PREM~ COURT REPORTS [1963]

-- 1962 manufactured in India. Section 19 gives power to Ad~y"lksha Mcthur the Central Government to m11.ke rules to carry out

lfab t's Sokti - the purpose of the Act and in particular s. 19 (2) Dacca ( P) Ltd. (xi:) gives powet• to notify in the official gazette

Yo Union of India liste of the nttmes and descriptions of preparations which would fall for assesement under any particular .Wancho1t J. item of the Sehedule or for regulating their manu-facture, transport and distribution". The Schedule (omitting the Explanations which are immaterial for present purposes) prescribing the duty is in these terms :- .. Item Description of dutiable goods Rate of duty No.

1. Medicinal and toilet prepara-Rs. Seven· tions, containing alcohol, teen and ans-which are prepared by distil-nas eight per lation or to which alcohol gallon of the has been added and which are strength · cif capable of being cons~med as London proof ordinary alcoholic beverages. spirit.

2. Medicinal and toilet prepara-tions not otherwise specified containing acohol- ( i) Ayurvedic preparations Nil containing self-generat-ed alcohol, which are not capable of being con· sumed as ordinary alco-holic beverages.

(ii) Ayurvedio preparations Rs. Three per containing self.generat gallon.

ed alcohol, which are capable of being con·- sumed as ordinary alco-holic bexerages.

(iii) All others Rupees five 196! per gallon of the stren- ..l.tlA,1abloo M_ Bab1l1 SCJTI gth of London Oushadhala proof spirit. · Dacca (PJ L v. Uaioa of ltttlla 3. Medioina.l and toilet prepara-Nil.

tions, not containing aloohol, but containing opium, Indian hemp, or other narcotic drugs or narcotio.

The Central Government framed Rules under the Aot in 1956 and the administration of the _Aot and the Rules wa1 entrusted to State-Govern-ments. A list of medioinal prepa.rations, whioh were capable of being used as ordinary alcoholic beverages, was also published along with the Rules and r. 65 provides that "until a standard Aynr-vedic pharmacopoeia . has been evolV'ed by the Central Government, the pharmacopoeias that a.re in vogue in the various .States shall be reoogni-sed as standard Ayurvedio pharmaoopoeias".

The contention of the petitioners is that these three Ayurvedio preparations conform to the definition of medicin11.l preparations given in s. 2 (g) of the Act. Further, in the Sohedule to the Rules, Mri-tasanjibani Sura w.as listed as .a medioinal prepar-ation in 1957. Further in 1958, Mritasanjibani and .Mritansanjibani Sudha were also added under the head "medicinal preparations'' in the Sohedule to the Rules as the . three are really one and the same medicine. The Aot and the Rules oame into force from April 1, 1957 in -aooordanoe with the provision of s. 1 (3) of the Aot, whioh gives po:

wer to the Central Government to enforoe the Act on such date as it may, . by notifioation in the official. gazette, . appoint. The petitioner's case is that thereafter they began to pay duties of excise on these three medioines under item 1 in

964 SUPREME COURT . REPORTS . [1963)

. .

1962 .the Sch~dule to the Act at the rate of Rs.17. 50 nP A.dliyak1ha Mathtfr per gallon of the strength of Loudon prO•)f I Babu'• Sakti spirit, as these preparations were consi.dered me-

OushadhalaJO dicinal preparations containing alocohol which were l'occa (P) Ltd,

v •. .prepared by distillation or to which alcohol was ·Union of India added and which w"re capable of being used as

Wancht10 J. ordinary afooholic beverages. This oontinued till August to 1961) when the Central Government L. purporting act under s. 19 of the Act amend-ed the Rules and omitted from the Schedule to the Rules two of the three preparations, nll.mel:Y, l\fritasunjibani and Mritasanjibani Sudha. Further in December, 1960, the Centr~I <Jovernment again amended the Rules and omitted from the Schedule to the Rules the third preparation (namely, Mrita· sanjibani Sura). Consequently, various State· Governrµents began demanding duties of excise on these there preparations at rittes which are -1 much higher than the rate of Rs. 17. 50 nP

pres~ribed in the Schedule to the Act .. 'Ihe conten· .tion of the petitioners is that on the coming into forca of the Act-, the levy. of excise duties on these medicinal preparations fell within item 84 of List I, with the result that thereafter it is not open to State-Governments to levy duties of iixoise on these preparation in accordance with the various Excise Acts in force in the Statas. It is further contended that if these preparations in fact come within the definition of "medicinal preparation" in s. 2 (g) of the Act and are covered by the Schedule to the Act, the omission of these three preparatio~s from the list attach0d to the Rules would make no difforonce and would not give power to the State-· Governments to tax them under the various Excise Acts in force in the States co11cerned.

The petitioners further say that though r. 68 of the l~ules. provides· for a Standing Committee to advise the Central Govt. on all matters connected with the technical aspects of the administration·of.the Act and the Rules, and in particular, on the qutietion whether (i) a particular preparation is entitled to be treated, or to continue to be treated, Adh!laksha· Mathur Babuls Sakti as a genuine medicinal or toilet preparation for Oushadhalay• the purposes of the Act, and (ii) if so, whether it Dai;ca (P) Ltd. v. should be treated, or continue to be treated, as a Union of India restricted or an unrestricted preparations, it was not WanchooJ. open to the said Committee even if it was consulted in this matter to advise the Go-.ernment that these three preparations were not medicinal preparations, if in fact they are medicinal preparations as defined in s. 2 (g). It is therefore urged that even if the Central Government acted on the advice of the Standing Committee when it omitte<l' these three prep&.rations from the list· appended to the Rules, it had no power to do so if these three prepara-tions are in fact medicinal preparations within the meaning of s. 2 (g) of the Act. The petit.ioners therefore pray for an appropriate writ, direction or order directing t,he Central Government not to give effect to the notifications of August and December J i:l60, removing these three. preparations from the list appended to the Rules and also for a direction to the >State-Governments not to levy duty on these preparations under the respective Excise . Acts in force in the various States and prohibiting the State·Governments from collecting duties of excise on the said medicinal preparations in excess of the ratui fixed by the Act and to refund the amounts of duty already collected. in excess of that r~te.

The petitions have been opposed. by the Central Government and by the various State-Goverriments ooncerned. The main counter-affidavit has been filed on behalf of the Central Government and the various State Governments have adopted .that counter-affidavit with some additions. The main contention on behalf of the respondents is that these three preparations are not a.dmitted to be "m_edicinal preparations containing alcohol" within

966 SUPREME COURT REPOR'l'S [1963]

entry 84 of List I, by reason of theee preparatione not being mentioned in any recognised Ayurvedic Aihy•lrsh• Uathur pha.rmaoopoeia. It is also not admitted that they

1Jabu~1 Satti Ousl•' ola1a are prepared according to the prescribed specifica-Doec• (P) •• Lti. tions referred to by the petitioners by utilising the Uni•n·of India proper ingredients and. manufactured aceording to the recipes or directions given. in the three Ayur-lr anch•o J. vedic text books relied upon by the petitioners. Further, it is denied that these three preparation• conform to the definition of s. 2 (g) of . the Act. It is also not admitted that they are remedies, muchless efficacious remedies for any human ailment. It is further urged that the Central Govern-ment has been empowered to decide on the 11.dvice of the Standing Committee whether any prepara-tion should be treated or continue to be treated as a genuine medicinal and toilet preparation for the purpose of the Act or whether it should be trei.ted or continue to be treated as . a restricted or unrestricted preparation. Further, t_he Central Government can according to the advice of the Standing Committee, amend the Scl:edule of the medicinal &nd toilet preparations of restricted cate-gory from time to time by notifications and if & particular preparation is found to fall out-side the scope of the Act the State-Governments would be competent to levy duties of excise on it under the Excise Acts· in force in the various States. It i_s contended that the action of th'J Central Government in omitting these there preparations . from the list to the> Rules framed under the Act WtlS based on the advice of the Standing Committee · which was of the opinion that these were not genuine medicinal preparations. Conse• quently, they were omitted from the ·Jist appended to the Rules under the Act and the Act did not apply to them with the result that the State Governments were free to subject the·m to duties of excise under the various Excise Acts in force in the various · States.

'Ihe main question therefore falls for consi-1962 deration in these cases is whether the three prepara-tion11 are in fact medicinal preparations conta-J.iihy1klha 'J/.a lh ur Babu's Salt.ti ining alcohol falling within item 84 List I of the Oushoiial •Y" Seventh Schedule to the Constitution, on which O•<ea ( P) Lli. y item the Act is based and so whether they are Unin •f lnii• medicinal preparations as defined in s. 2 (g) of the Act. If they are medicinal prepartions as defined therein, they will be governed by tho Act and ·the omission of these preparations from the list a.ppended to the Rules will not make any diffe-rence to their being medicinal preparations within the meaning of the Act. . Before . howaver we deal with this main question, we may dispose of a contention raised on behalf of the State of Bihar that even if the three preparations are medicinal preparations they will be liable to duty poth under the Act as well as under the various Excise Acts in force in the various States.

We have already pointed out that under the Government of India Act, 1935, medicinal and toilet preparations were liable to duties of excise under entry 40 of List II of the Seventh Schedule to that Act. Correspondingly under item 45 of List I ibid which provides for duties of exoise on tobacco and other goods· manufactured or produced in India, medicinal and toilet prepara-tions were excepted from that entry. Therefore, till the Constitution came into force the State-Govern~ ments had power to levy duties of excise on medicinal and toilet preparations. We ha.ve further pointed out that the .Constitution has ma.de a change, and medicinal and toilet preparations were excepted from en.try 51 · of List II of the . Seventh Schedule to the .Constitution relating to duties of excise leviable by States and were put in entry 84 of List 1 ibid which' provides for duties of excise leviabl~ by the Union. How-ever, Art. 277 provides that a.ny taxes or duties etc. which, immediately before the commencement

968 SUPREME COUR'l REPORTS [1963]

19Ji of the Constitution, were being lawfully levied by

the Government of a,ny State etc. may, notwith-Adhyakaha Mathur standing that those taxes, duties etc. are mentioned

Babu's SaA·ti Oushadhal 1-iya in the Unfon List, continue to be levied and to be Dacca ( P) Ltd. applied tci the same purpose until provision to the

v.

Union of India contrary is made ':>y Parliament by law. Therefore,

, so long as Parliament did not make any law relating