TaxTMI 
TaxTMI 
2003 (5) TMI 503
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....rnover by admission of cartage disallowing form 3 Kha and lastly by taxing the sale of soda bicarb at the rate of 8 per cent. During the assessment years 1984-85 and 1985-86, the assessing authority accepted the gross turnover but the turnover of soda bicarb amounting to Rs. 12,45,439.10 and Rs. 21,15,308.85 respectively was also assessed at the rate of 8 per cent treating the same as chemical. Three appeals were filed by the appellant against the said assessment orders before the learned Deputy Commissioner (Appeals), Sales Tax, all the three appeals were dismissed on common point. Feeling aggrieved with the aforesaid impugned orders, the appellant has filed the present three second appeals before this Tribunal. 3.. Since the main dispute in all the three appeals is with regard to the taxability of soda bicarb, therefore these are being disposed of by this common judgment. 4.. It has been argued by the learned counsel for the appellant that the lower authorities have erred in treating the soda bicarb as chemical and taxing the same at the rate of 8 per cent, while on the other hand it ought to have been taxed at the rate of 6 per cent, treating soda bicarb as medicine. 5.. On t....
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....100.5 per cent of NaHCO3, calculated with reference to the dried substance." On the contrary, it has been submitted on behalf of State/Revenue that soda and soda ash has been defined in the following dictionaries in the following manner; Chambers: Soda: Sodium oxide, Sodium hydroxide (caustic soda), sodium carbonate, the soda of commerce (in powder form, anhydrous, soda ash in crystals with water of crystallisation washingsoda) sodium bicarbonate (baking soda). Oxide: One of the components of sodium in common use, especially sodium carbonate or bicarbonate." The soda and soda ash includes sodium bicarbonate. Further that if the goods are capable of more than one use, then the primary use will have to be seen, while determining the taxability of goods. Further that the word "goods" must be construed not in the technical sense but as understood in common parlance. 8.. In the present revisions the dispute is whether soda bicarbonate being medicine falls under the entry of "medicines and pharmaceutical preparations including insecticides and pesticides" and liable to tax at the rate of 6 per cent or falls under the entry of "chemicals of all ki....
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....pal is a chemical process is of no consequence because that is not the criterion upon which entries in the notifications under the U.P. Sales Tax Act are to be interpreted. If an article falls in a specific classification of 'washing materials' it would cease to belong to the general category of chemicals. Since in the assessment years 1958-59 and 195960 there was no separate classification of washing material, Tinopal would be covered by the entry 'chemicals of all kinds'." 11.. As referred by on behalf of applicant-revisionist/dealer that in the case of Commissioner of Sales Tax, U.P. v. Chhotey Lal Parameshwaer Lal reported in 1979 UPTC 512, the question was whether the soda sold by the assessee falls under the entry of washing materials or chemicals. The High Court has held that "Soda is undoubtedly a chemical in the technical sense, but as it is normally used as material for washing purpose, it should be classified as such". 12.. As submitted on behalf of applicant-revisionist/dealer that in the case of Rashtra Deep Laboratory v. Commissioner of Sales Tax, U.P. reported in [1983] 53 STC 419 (All.); 1982 UPTC 676, question was whether water for ....
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....urgtive. Such purgatives are not readily absorbed from the intestine. When taken by mouth in dilute solution they reduce the normal absorption of water from the intestine, with the result that the bulky fluid contents distend the bowel, active reflex peristalsis is excited, and evacuation of the contents of the intestine occurs in one to two hours.' Saline purgatives are often given in habitual constipation due to deficient peristalsis. It would be seen, therefore, that according to this treatise tartaric acid is a saline purgative and is administered well-diluted with water and the effect is to relieve constipation. I do not think that after the above actions and use of tartaric acid any doubt can be entertained that tartaric acid is not a medicine. It may be a chemical which word is a wider import but when there is specific entry about it, it is the special entry which is to cover the levy and rate of tax and not the general entry. " 14.. In reference to the following case the applicant-revisionist stated that in 1986 UPTC 367 (Commissioner of Sales Tax v. Balsara Hygine Products Ltd.) "Odomos" was held to be a preventive and medicine. In [1986] 61 STC 273 (A....
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....eme Court observed that the words must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. 18.. It will not be out of place to mention that in the case of Express Dairy Company Limited, Calcutta v. Assessing Authority, Hissar [1971] 28 STC 37 (P&H), the Supreme Court has held that if those goods are capable of more than one use, then the primary use will have to been seen while determining the taxability of the goods and in the case of Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh [1981] 47 STC 359 it was observed by Supreme Court that in the absence of any definition, being given in the enactment the meaning of the term in common parlance or commercial parlance, has to be adopted. 19.. In the case of Industrial Chemical Corporation v. Commissioner of Sales Tax, U.P. [1972] 30 STC 172 (All.); [1972] UPTC 310 where the assessee carried on business in paints, marble chips, white cement and coal-tar, and also dealt in calcium carbide, the assessing authority assessed the calcium carbide as chemical which was disputed by the assessee and it was held by High Court that calcium carbide was taxabl....
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....983, 418 of 1983 and 656 of 1983 decided on August 23, 1986 by Sri S. Saksena, Member, Sales Tax Tribunal, Bareilly Bench-I, Bareilly) and the case of Commissioner Sales Tax, U.P. v. Kataria Trading Company Generalganj Kanpur (Second Appeal No. 411 of 1983 decided on September 22, 1989 by Division Bench of Sales Tax Tribunal, Kanpur). From the perusal of the case of Commissioner of Sales Tax, U.P. v. Khandelwal Agencies, Gangapur Bareilly (Second Appeals Nos. 417 of 1983, 418 of 1983 and 656 of 1983 decided on August 23, 1986), it is apparent that the case was decided in favour of the assessee on the ground that in the case of that very assessee for the assessment year 1971-72, the Tribunal had held Soda bicarbonate as a medicine and in the year 1983-84 the revenue had itself treated Soda bicarbonate as a medicine. It will not be out of place to mention that Bareilly Bench had relied on the case of Commissioner of Sales Tax, U.P. v. Gramodyog Karyalaya [1979] 44 STC 270 (All.); (1979) UPTC 884. In the said case, the taxability of "Jari bootis" was the subject-matter before High Court and it was observed by High Court that herbs are valued and sold primarily for their medi....
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.....P. Sales Tax Act. Under the said section, revision lies only on a question of law, as it is evident from sub-sections (4) and (8) thereof." 25.. In respect of submissions of applicant-revisionist soda bicarb manufacture is being sold as "Eno", it is remarkable to note that lemon Eno is a ayurvedic property which contains Svarjiksara (Shudh) 2.91 g., Nimbukamlam (Shushkam) 2.04 g., flavours and sweetening agent added contain permitted colours tartrazine and brilliant blue FCF q.s. and it does not soda bicarbonate directly. 26.. In view of the above observation the finding of fact recorded by the "Tribunal" does not require for any interference and soda bicarbonate and other material prepared by the applicant-revisionist has rightly been treated to fall under entry of chemical and is to be taxed at the rate of 8 per cent at the point of manufacture of chemical. 27.. As regards the taxability of soda bicarb sold by the assessee is concerned, in view of the discussions made above, we are of the opinion that soda bicarb is taxable at the rate of 8 per cent. Learned counsel for the appellant further argued that the assessing authority did not give proper oppo....