TaxTMI 
TaxTMI 
2010 (6) TMI 710
X X X X Extracts X X X X
X X X X Extracts X X X X
....x Appellate Tribunal, dated 30.8.1999 in Tribunal Appeal No.143 of 1998 etc. batch. 2. In these Tax Case Revisions as well as the writ petitions we are only concerned with the appeals relating to the Assessment years 1991-92, 1992-93, 1994-95 and 1995-96. The only issue involved in all these cases is as to whether "medical oxygen" would fall under Entry 95 of Schedule-I Part-I as was existing in the year 1991 or Entry 20-A of Schedule-I Part-C as was existing in the year 1993 or Schedule-I, Entry 106 as was existing in the year 1991 or Entry 25 of Schedule-I as was existing in the year 1993. The relevant entries as was existing in the respective years were detailed as under: "1991 (5-9-91) Schedule I (Part-I) Entry 95 Rate 6% Drugs, Pati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tigraphic apparatus, other electromedical apparatus and sight testing instruments including opthalmoscope, otoscope, laryngoscope, Retinoscope, binocular loupe, parts and accessories thereof (other than those specified elsewhere in this Schedule). GASES 1991 Schedule I, Entry 106 Rate 10% Gases (Other than specified in item 159) is compressed), liquified or solidified form. (Item 159: Fuel Gas including liquified Petroleum Gas) 1993 Schedule 1 E 25 Rate 12% 1. Gases (Other that those specified elsewhere in this schedule in all its Forms. 2. Purified and processed gases in all its forms." 3. Before the Tribunal it was the second round since on the earlier occasion by order dated 10.9.1997 passed in O.P.Nos.3097 and 3098 of 1997, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned order, the Tribunal took the view that since the analysis of the Appellate Assistant Commissioner, the tests laid down by the Supreme Court in the decision in 105 STC ,318 supra, having been satisfied the "medicinal oxygen" could fall within the Entry 95, Schedule-I, Part-I for the year 1991-92 and under Entry 20-A of Schedule I, Part-C for the subsequent years 1992-93 onwards and held that rate of tax applicable would be 6% for the assessment year 1991-92 and 5% for subsequent assessment years. The Tribunal however, held that the penalty imposed cannot be interfered with, inasmuch there was belated payment of tax it attracted Section 12(3)(c) of the Tamil Nadu General Sales Tax Act. 6. Assailing the order of the Tribunal, learned Spec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and not a specific item of medical product. 8. Having heard learned counsel for the respective parties and having perused the material papers and the reasons contained in the relevant entries in the Schedule as well as the definition of "drug" under the Drugs and Cosmetics Act as well as the relevant Rules framed under the said Act, we are convinced that the conclusion of the Tribunal cannot be interfered with. The definition of 'drug' under the Drugs and Cosmetics Act in the year 1991 and the Entry 95 of Schedule-I, Part-I, is concerned, it specifically states that in order to ascertain the drug one should be guided by the definition of 'drug' as it is defined in the Drugs and Cosmetics Act, 1940. The definition in the sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontrary intensity of any disease or disorders in human being. It is common knowledge at times of emergency, the application of "medical oxygen" to a patient is resorted to in order to prevent any sudden collapse of a patient, which process is nothing but part of a treatment meted out to a patient to recoup the deterioration of health condition. Therefore, keeping the above basic features in mind, the tests laid down by the Honourable Supreme Court in the decision in 105 STC ,318,supra, have to be applied. The tests laid down are as under: (i) What is the medicinal contents of the product has to be ascertained; (ii) Further its curative function has to be found out to decide whether the product can be called a medicament at all. (iii)Fina....