TaxTMI 
TaxTMI 
2025 (8) TMI 1651
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....aw said to arise out of the order dated 26.12.1995 passed by Board in Appeal No. 7-2/5/279/94 within 3 months from the date of this order under Section 44(1) of the Act:- "Whether under the facts and circumstances of the case, the Board of Revenue was justified in holding that "Isabgol Husk" is covered under medicines and, therefore, is taxable at the rate of 3% under Entry 16 of Part IV of Schedule II and not taxable under Entry 13 under Part VI of Schedule II of M.P.G.S.T. Act as Kirana goods?" 03. Facts in background of this reference are that assessee dealing in veterinary medicines, observant cotton and Sat. Isabgol in compliance of notice for assessment along with their books of accounts and other relevant documents appeared before the assessing authority. During scrutiny of declaration forms, it was found that assessee has imported Sat. Isabgol of Rs. 60,949/- from Siddhpur along with other medicines. On this considering it as medicine, tax @ 3% was deposited. Assessing authority referring memo No. Vik/1/1028/A, Indore, dated 09.10.1967 and Circular No. A-3-26-90/ST-5/63 dated 31.07.1990 found that Isabgol has been mentioned as grocery (Kirana) item at serial No.....
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.... aggrieved by refusal to make a reference MCC No. 216/1999 was preferred wherein the Division Bench of this Court directed Board of Revenue to draw a statement of case and refer it on the question mentioned herein-above. In compliance of the direction, reference was made which is registered as instant MCC. 05. Learned Deputy Advocate General appearing for the applicant/State submits that Sat. Isabgol and Isabgol are the same items which are mentioned as Kirana items in memorandum No. fod/1/10028 ¼d½ Indore, dated 09.10.1967 in serial No. 13 and Notification F. No. A-23-26-90-ST-V(63), dated the 31st July, 1990 (Annexure P/1) in serial No. 13. This item is sold on Kirana shops without any prescription. As per general use, Sat. Isabgol is Kirana item and not a medicine. Learned Assessing Officer in its order dated 20.10.1952 (Annexure A/1) and First Appellate Authority vide order dated 28.03.1994 had rightly concluded that Isabgol is a Kirana item, taxable @ 12% and it is not a medicine and it cannot be treated medicine to be charged @ 3%. 06. Learned Deputy Advocate General further submits that Board of Revenue vide order dated 26.12.1995 (Annexure A/3) passed in....
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....367;नियम, 1956 की धारा 12 के अधीन प्रसारित पृथक आगम विभाग आधिसूचना क्रमांक 274211789 पाँच। [घक , दिनांक 29-08-67 के संलग्न अनुसूची के कालम 9 में निर्दिष्ट मालों पर 1 [सितम्बर, 1967 से 21-03-68 तक कर की दर 6 प्रतिशत की गई है। उक्त अनुसूची के कालम 9 के क्र....
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.... 9. ........ 10. ...... 11. ...... 12. ...... 13. Isabgol 10. It is not dispute that at the relevant time Isabgol as grocery item was a taxable @ 12% and as per contention raised on behalf of assessee, it was a medicinal item, therefore, it was taxable only @ 3%. Board of Revenue in its order dated 24.12.1995 passed in second appeal has gone into the nuances of the rival contentions advanced on behalf of the parties for treating Sat. Isabgol (Husk) as medicine or a Kirana item. From perusal of Entry No. 13 in aforementioned memo dated 09.10.1967 and Notification dated 31.07.1990, it is apparent that item mentioned at serial No. 13 is Isabgol, but Assessing Officer and First Appellate Authority have failed to keep in mind distinction with regard to the fact that Sat. Isabgol is Isabgol Husk which is distinct from Isabgol itself which is listed at item No. 13 in the Schedule as Kirana item. There is no dispute with regard to the fact that Isabgol is a seed grain grown in the fields whilst Isabgol Husk and Sat. Isabgol is a distinct product which is obtained after processing and removing the grain. It is also of common knowledge that Sat. Isa....
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....not less than 20 ml and sets to a jelly. Ash : Not more than 4.5 per cent, Appendix 3.3.22. Acid-insoluble ash : Not more than 0.45 per cent. Appendix 3.3.22. Loss on drying : Not more than 12.0 per cent, determined on 1.0g by drying in an oven at 105 for five hours. Appendix 5.8. Storage : Store in well-closed containers protected from moisture and against attack by insects and rodents." 11. Sales Tax Act does not define Drugs or Medicines and, therefore, to determine whether an item is a medicine, the definition given under Drugs and Cosmetics Act, 1940 will apply. Section 3(b) of the Act runs as under:- "(b) "drug" includes- (i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes; (ii) ....... (iii) ....... (iv) ........." 12. In catena of judgments of various Courts, it has been held that to ascertain the nature and functional....
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....ntained in it, but is to be construed in its popular sense, meaning of course, by the words 'popular sense', that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it." But "if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary for carrying out the objections of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adopted to the fitness of the matter of the statute." On the other hand, as Fry, J., said in Holt & Co. V. Collyer(3), "If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning, namely, its technical or scientific meaning........." 15. Similar view has been taken by the Apex Court in the case of Ramavatar Budhaiprasad vs. The Assistant Sales Tax Officer, Akola & Anr. 1961 (12) STC Page 286, wherein the Apex Court has held as under:- ....