Himani Ltd. Vs. Assistant Commissioner of - Court Judgment

Excerpt:
1. these twelve applications under section 8 of the west bengal taxation tribunal act; 1987 are in the nature of applications under articles 226 and 227 of the constitution of india. the question to be decided is whether "boroplus", a product of the applicant (henceforth referred to as "the company") is a homeopathic medicine, an ayurvedic drug, a drug, or a patent or proprietary medicine, or a cosmetic for the purpose of the west bengal sales tax act, 1954 ("the 1954 act", for short). the company has raised the identical question in all these twelve applications which relate to twelve periods, being the periods of 12 months each ending respectively march 31, 1994 (rn-149), march 31, 1983 (rn-150), march 31, 1984 (rn-151), march 31, 1985 (rn-152), march 31, 1986 (rn-153), march 31, 1987 (rn-154), march 31, 1988 (rn-155), march 31, 1989 (rn-156), march 31, 1990 (rn-157), march 31, 1991 (rn-158), march 31, 1992 (rn-159) and march 31, 1993 (rn-160).2. the company's case is that it carries on the business of, inter alia, manufacturing drugs and medicinal preparations including "boroplus antiseptic cream" (for short, "boroplus") for sale. up to october 15, 1987 boroplus was manufactured according to homeopathic system of medicine, but since october 30, 1987 it has been manufactured according to ayurvedic system of medicine. reference has been made to notification no. 1658-f.t. dated august 1, 1956 issued under section 25 of the 1954 act, wherein "drugs" and "patent or proprietary medicine" are included as defined in section 3 of the drugs and cosmetics act, 1940 (henceforth referred to as "the drugs act"). reference is also made to definition of "medicinal preparation" in section 2(g) of the medicinal and toilet preparations (excise duties) act, 1955 (in short, "the 1955 act"). it is claimed that since boroplus is a medicinal preparation containing rectified spirit, the company applied for and obtained a licence under the 1955 act for manufacture of the homeopathic product containing rectified spirit. the registration certificate of the company as a dealer under the 1954 act and the central sales tax act, 1956 were amended by inclusion of "boroplus (homeopathic medicine)". the company took up the matter with the office of respondent no. 2, commissioner of commercial taxes, who opined in a communication dated january 10, 1984 (annexure "h") that boroplus was liable to sales tax under the 1954 act as a drug. [it may be mentioned at this stage that the said communication bearing no. 502 c.t. dated january 10, 1984 was signed by the public relations officer, commercial taxes]. but the commercial tax officer (who has not been made a party to these applications) made assessments for the period of 12 months ending march 31, 1983 under the 1954 act (we need not refer to assessments under the central sales tax act which are beyond this tribunal's jurisdiction), holding that boroplus was a cosmetic, not a drug. prom that order of assessment, a writ application under article 226 of the constitution of india, being matter no. 4884 of 1987, was filed in the high court at calcutta, in which an interim order dated september 16, 1987 was made, vide annexure "j", page 49. by that interim order prayers (e) and (f) of the writ application were allowed on condition that the applicant would furnish bank guarantee for rs. 50,000 within a period of two weeks after the long vacation. another interim order was made in the same matter on december 18, 1992 by the high court. by the second interim order prayer (a) was allowed. it is stated in paragraph 10 of the application that prayer (a) was for staying the communication dated november 23, 1992 by commercial tax officer informing the company that the revenue was going to treat boroplus antiseptic cream as a cosmetic, as the earlier interim order had lapsed. after this tribunal was set up, the said writ application stood transferred to this tribunal and was disposed of by judgment and order dated may 6, 1996 in rn-11(t) of 1995, which will be found at pages 12 to 17, annexure b to the present application. by that judgment and order dated may 6, 1996, the writ application was disposed of on consent. the assessment order of 1987 for the period of 12 months ending march 31, 1983 under the 1954 act and also orders of assessment under the same act for subsequent periods were quashed. respondent no.1, commercial tax officer, shyambazar charge, was directed to make fresh assessments under the 1954 act in respect of boroplus within a period of one year from the date of the judgment and for that purpose certain directions were given.3. the further case of the company is that after the said judgment dated may 6, 1996 was passed, respondent no. 1 issued 12 communications all dated june 3, 1996 for assessments for the periods of 12 months each ending march 31, 1983 to march 31, 1994. then the company addressed letter dated july 1, 1996 to respondent no. 1, pleading that by the judgment dated may 6, 1996 of this tribunal only the assessments, which were completed during the continuance of the interim order of the high court, were quashed, and not all the assessments irrespective of dates of orders of assessment. it was also submitted that the high court's interim order expired on may 22, 1989. according to the applicant-company, during the period of operation of the high court's interim order, namely, between september 16, 1987 and may 22, 1989 only the assessments for the periods of 12 months each ending march 31, 1983 to march 31, 1986 had been made, and the assessments for the remaining periods of 12 months each ending march 31, 1987 to march 31, 1994 were made after expiry of the high court's interim order on may 22, 1989, and thus those orders of assessment should not be deemed to have been set aside. at the fresh proceeding before respondent no.1, the company filed various documents and evidence in support of its claims. but allegedly without application of mind respondent no. 1 arbitrarily passed order dated march 25, 1997 holding that boroplus cannot be treated as a drug or a medicine, but should be classified as a cosmetic and it falls under the entry "cosmetics of all varieties".then respondent no. 1 issued 12 demand notices for the periods of 12 months each ending march 31, 1983 to march 31, 1994 under the 1954 act, which were received by the applicant on april 8, 1997.4. the applicant-company claims that boroplus is a drug within the meaning of section 3(b) of the drugs act and it fully satisfies the definition of "drug" in section 3(b) under notification no. 1658-f.t.dated august 1, 1956 under the 1954 act. the director of drugs control, west bengal was fully satisfied and hence he approved boroplus as a drug. composition of boroplus was also duly approved by him. when boroplus was manufactured by the applicant-company according to homeopathic system of medicine, the director of drugs control classified it as "ointment (homeopathic) medicine" and when it was manufactured according to ayurvedic system, he classified it as "ointment (ayurvedic) medicine". there is no scope according to the company to take a different view. it is contended that boroplus is known, treated and recognised in the medical profession as a drug or medicine. this is evident from certificates and affidavits filed before respondent no. 1. in commercial parlance also boroplus is claimed to be regarded as such. in support of this, certificates from medical shops, clubs, social organizations and actual users were filed before respondent no. 1. on each tube and carton of boroplus medicinal properties have been emphasised. so also in the leaflet placed inside each packet or carton. each active ingredient used in manufacture of boroplus is covered by authoritative books on either ayurvedic or homeopathic system of medicine. the company has challenged the observation of respondent no. 1 to the effect that switching over from homeopathic system to ayurvedic system demonstrates that the product was neither a homeopathic medicine nor an ayurvedic drug. it is claimed to be a medicine under both the systems. similarly, respondent no. 1's observation is criticised that homeopathic medicine can contain only one unmixed medicine at a time. it is stated that combination of homeopathy medicines is permissible. in paragraph 29 of the application the company pleads that respondent no. 1 erred in holding that an ayurvedic drug or patent or proprietary medicine must be manufactured exclusively in accordance with the formula described in authoritative books on ayurvedic system of medicine. it is contended that the aforesaid composition holds good in respect of ayurvedic drugs defined in section 3(a) of the drugs act, or in the case of patent or proprietary medicine defined in section 3(h) of the drugs act.allegedly, it was not claimed before respondent no. 1 that boroplus satisfies the definition in section 3(a) of the drugs act. it is claimed that the composition was arrived at the company's factory after extensive research and experiments. the company also pleads that combination of herbs is permitted in ayurveda and the respondent was wrong in holding that boroplus is a petroleum product, percentage of herbs being small. expiry period of boroplus is 5 years, but on that basis respondent no. 1 could not say that it was not a medicine.5. a supplementary affidavit was filed by the company in which it is stated that the company had filed appeals before the deputy commissioner in respect of the orders of assessment, but by a consolidated order dated september 8, 1997 he dismissed all the appeals. that appellate order is now challenged. the company is questioning the findings of the deputy commissioner that the product is not manufactured according to the techniques of homeopathic pharmacy and its therapeutic efficacy was not recorded in any authoritative homeopathic literature. he held that lanolin or paraffin has not been described as homeopathic medicine in any pharmacopoeia or materia medica. it is stated by the company that these are only vehicles or bases for ointments. as regards calendula, it is claimed that its use and therapeutic value under homeopathic system of medicine is recognised by pharmacopoeia and materia medica. it is claimed also that boric acid and zinc oxide, which are ingredients of boroplus help in curing and preventing impetigo and intertrigo and are recognised as such. on various other points also applicant has challenged the findings or reasonings of the deputy commissioner relating to manufacture according to homeopathic system and also ayurvedic system.similarly, the deputy commissioner's finding is challenged with regard to the composition of boroplus as a patent or proprietary medicine within section 3(h) of the drugs act. in paragraph 40 of the supplementary affidavit it is stated that the deputy commissioner also rejected the company's submissions regarding other medicinal products, such as antiseptic lotion, cough syrup, prickly heat powder, gold turmeric antiseptic cream, navaratna oil. the judgment of this tribunal dated may 6, 1996 was relating to assessments of boroplus only, but at the time of fresh assessments the assistant commissioner included also other products about which there was no dispute and which were not the subject-matter of the judgment dated may 6, 1996.6. respondents have filed an affidavit-in-opposition to the main application and another affidavit-in-opposition to the supplementary affidavit of the company. in the main affidavit-in-opposition, the case of the respondents is that appeals arising from orders of assessment in respect of 12 separate periods were disposed of by the deputy commissioner of commercial taxes, corporate division (the appellate authority) by an order dated september 8, 1997 which is annexed to the supplementary affidavit of the company and marked as annexure v.boroplus was correctly classified as a cream within the meaning of cosmetic specified in notification no. 3123-f.t. dated july 15, 1975 issued under section 25 of the 1954 act, and not as a drug specified in notification no. 1658-f.t. dated august 1, 1956 issued under the same provision. merely because the company had obtained licence from the director of drugs control, west bengal under the drugs act, boroplus, which is a cream, cannot become a drug. it is not disputed by the company that boroplus is a cream and, as such, it falls within the expression "snow and creams of all descriptions and varieties". grant of drug licence does not conclusively prove that the licence was granted after thoroughly examining the compositions of boroplus. it is neither a medicine nor a substance intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animals, nor boroplus is a substance within the meaning of section 3(b)(ii) or (iii) of the drugs act. in licence no. hl-493m dated july 16, 1982 (valid up to december 31, 1983) boroplus was shown as the company's product and was described as "ointment homeopathic medicine". some of the ingredients of homeopathic boroplus may be homeopathic substances mentioned in some homeopathic pharmacopoeia, but other ingredients like lanolin, paraffin and rectified spirit are neither homeopathic medicines nor substances intended to be used for or in diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animals. there is no reference of "ointment homeopathic medicine" in any homeopathic pharmacopoeia. boroplus being an ointment is not intended to be used for diagnosis of any disease or disorder, and not even used for identification of cause of any disease or disorder in human being. for using boroplus no prescription of any particular dose for any particular disease is required. it is used as a cosmetic and it is up to the consumers as to how it would be used. description of boroplus of the company in the drug licence as an ointment of homeopathic medicine does not make it a drug under section 3(b) of the drugs act. the licensing authority under the drugs act being a creature of the statute cannot act beyond the scope of section 3(b) of the drugs act.declaration in the drug licence that boroplus of the company is an ointment of homeopathic medicine is of no legal consequence for the purpose of assessment of tax under the 1954 act. similarly, respondents contend that mere grant of a licence by the deputy commissioner of excise (special) for use of rectified spirit as an ingredient in boroplus does not make boroplus, manufactured by the company, a drug within the meaning of section 3(b) of the drugs act or within notification no. 1658-f.t. dated august 1, 1956. the purpose of this licence has no nexus with levy of sales tax under the 1954 act. the purpose of specifying any goods in the dealer's registration certificate is only to allow a manufacturing dealer to purchase inputs and packing materials at a concessional rate of tax for use thereof in the manufacture of goods specified in the registration certificate. the purpose of such specification is not to determine the class or character of the goods to be manufactured and sold. the assessing authority is legally competent to determine the character or the class of the goods. hence, such certificate of registration is not the determining factor in deciding whether boroplus falls under the category of drugs or cosmetics. the assessing officer is a quasi judicial authority. the opinion expressed in the latter dated january 10, 1984 issued by the public relations officer, commercial taxes directorate, is not binding on a quasi-judicial authority for the purpose of assessment of tax. neither the documents filed by the company nor the drug licence dated may 21, 1987, prove that boroplus manufactured from october 30, 1987 was an ayurvedic drug for the purpose of levy of sales tax. nor does the certificate dated december 11, 1987 issued by the additional director of drugs control prove that boroplus was an ayurvedic drug, as manufactured by the company. the drug licence was granted before commencement of manufacture of boroplus. the statements by the manufacturer (the company) either on the packets or cartons or in the leaflets put inside the packets or cartons do not prove the true character of boroplus. before boroplus can be classified as ayurvedic drug under section 3(a) of the drugs act, the company should establish that it is not only a medicine intended for the purposes stated in section 3, but also that it is manufactured exclusively in accordance with formula given in authoritative books on ayurvedic system of medicine, specified in the first schedule of the drugs act. ingredients used in manufacturing boroplus are mentioned in books like "dravyagun" and "bharatiya banoushadhi", but those books are not specified in the said first schedule. composition of boroplus indicates that, though the ingredients may have ayurvedic medicinal properties derived from herbs and plants, they have no therapeutic and prophylactic use, because the ingredients were not manufactured according to the formulae prescribed by the authoritative books specified in the first schedule. merely because some substances having medicinal property were used in boroplus, it cannot be said that the product lost its character as a cream being a cosmetic. so also, merely because the manufacturer claims that his product is an ayurvedic medicine, that would not make the product a medicine, if in reality and substance it is found to be not a drug or an ayurvedic medicine within the meaning of the drugs act.consumers use boroplus as a cream and a cosmetic and not as a medicine.merely because some certificates were collected by the company and produced before the assessing authority from doctors, skin specialists, etc., who expressed their views or impressions or because some of the ingredients of boroplus have medicinal properties, it cannot be said that consumers accepted boroplus as a drug or an ayurvedic medicine or the product became a drug or ayurvedic medicine within the meaning of section 3(b) or 3(a) of the drugs act. these ingredients of boroplus are different commodities for the purposes of taxation, and the manufactured product containing those ingredients is a different taxable commodity.7. the further case of the respondents is that manufacture of boroplus according to homeopathic system was discontinued because of the decision of this tribunal reported in commissioner of commercial taxes, west bengal v. west bengal commercial taxes tribunal [1993] 89 stc 355 holding that boroline was not a drug (boroline containing more or less the same ingredients, i.e., boric acid and zinc oxide). switching over of manufacture from homeopathic system to ayurvedic system shows that boroplus has its own name and utility independent of any system of medicine. the consumers' taste, need and purpose are in no way affected by change of some ingredients or by changing the system of medicine.hence, the assessing authority rightly held that boroplus was a cream within the meaning of cosmetics. boroplus cannot be treated as a homeopathic or ayurvedic medicine, if on the point of fact it is found that it is not a drug or a medicine. there are some products like soap or powder which contain medicinal ingredients to a certain extent, but for that reason have not become drugs or medicines themselves. in the commercial parlance boroplus was not at all considered as a drug or a medicine. it is denied by the respondents that this tribunal by its order dated may 6, 1996 in rn-11(t) of 1995 directed the assessing officer to make fresh assessments only in respect of those periods whose assessments were completed during continuance of the interim order of the high court from september 16, 1987 to may 25, 1989, respondents have asserted that in terms of this tribunal's order dated may 6, 1996 the assessing officer had the authority and jurisdiction to make fresh assessments for the periods subsequent to the interim order of the high court dated september 6, 1987. the order of this tribunal was not confined to only the assessments made during continuance of the interim order. unless a product is exclusively manufactured in accordance with the formula described in authoritative books on ayurvedic system of medicine, it cannot become an ayurvedic drug or medicine. since february 1, 1983 ayurvedic drugs were separately classified in section 3(a) of the drugs act. since then, ayurvedic drugs stood excluded from "drug" defined in section 3(b) of the drugs act. boroplus was not manufactured on the basis of approved ayurvedic formula. hence, it is not an ayurvedic drug or medicine. the assessing authority considered all the documents and materials produced before him by the company.8. in the second affidavit-in-opposition with reference to the supplementary affidavit of the company, respondents' case is that the appeals were rightly and correctly disposed of by a consolidated order dated september 8, 1997 after duly considering all the documents and materials produced. the deputy commissioner, being the appellate authority, held that boroplus is neither homeopathic medicine under rule 2(dd) nor a drug under section 3(b) of the drugs act. in the certificates granted by doctors boroplus was not certified as a drug or medicine. boroplus is neither a drug nor a patent or proprietary medicine. description and character of constituents of boroplus are no determining factor for ascertaining its character as drug or medicine.the company's own claim or advertisement will not determine character of boroplus. a commodity which is a cosmetic or a toilet preparation does not become a drug or medicine merely because some of the ingredients have medicinal value. to become a drug or medicine, the product should be prescribed by physicians, boroplus is not so prescribed. there is no dosage for use of boroplus. though boric acid or zinc oxide may be classified as drug or medicine, and though such ingredients are used in manufacture of boroplus, boroplus does not become a drug or medicine. now-a-days cosmetics are so manufactured as to maintain skin or to save skin from problems or ailments, but such cosmetics do not become drugs. a medicated cream also falls under the category of cosmetics. boroplus has no therapeutic value of its own, though some of its ingredients may have such value. in spite of that, boroplus is a cosmetic.9. two affidavits-in-reply have been filed by the company in response to the two affidavits-in-opposition. generally the averments in the main application and the supplementary affidavit have been repeated.the statements of the respondents have been denied. it is contended that all the items covered by notification no. 3123-f.t. are for cleansing or beautifying or promoting attractiveness of human body. the expression "creams of all descriptions and varieties" cannot be read in isolation, and should be read in the light of different items covered by the entry. there was no entry during the entire relevant period regarding medicated cosmetics, otherwise there is no scope to treat boroplus as medicated cosmetics.10. at the outset, two points need to be clarified. it will appear from foregoing paragraph 3 of this judgment that the applicant had taken a plea that only those assessments, which were completed during continuance of high court's interim order, were quashed, and the rest of the assessments were not quashed. it has been also stated that assessments only for the periods of 12 months each ending march 31, 1983, march 31, 1984, march 31, 1985 and march 31, 1986 had been made during continuance of the high court's interim order, thereby pleading that the other assessments for the subsequent periods up to march 31, 1994 had not been quashed by this tribunal's judgment dated may 6, 1996. but at the time of arguments this contention was abandoned, and on the other hand, in paragraph 45(a) of the written notes of "main submissions on behalf of himani limited" (hereinafter referred to as "written notes"), it was conceded that by the judgment and order dated may 6, 1996 the order of assessment of 1987 for the period of 12 months ending march 31, 1983 under the 1954 act and orders of assessment under the said act for subsequent periods were quashed and the direction was given to make fresh assessments for these periods. the relevant part of the aforesaid paragraph 45(a) is extracted below : "the said writ petition was disposed of by this honourable tribunal by its order dated may 6, 1996. the said order was passed on consent. by the said order, the assessment order of 1987 and for subsequent periods were quashed and the respondent no. 1 was directed to make fresh assessments under the 1954 act ...." ultimately, it is, therefore, undisputed that by judgment and order dated may 6, 1996 in rn-11(t) of 1995 arising out of the writ application received in this tribunal on transfer from high court, the order of assessment passed in 1987 for the period of 12 months ending march 31, 1983 and the orders of assessment for the subsequent periods were all quashed, and respondent no. 1 was directed to make fresh assessments not only for the period of 12 months ending march 31, 1983, but also for the periods subsequent to the interim order dated september 16, 1987 passed by high court. this position is clear from the said judgment and order dated may 6, 1996 passed by this tribunal.therefore, it cannot be said that respondent no. 1 committed any error or went beyond the mandate of the aforesaid judgment of this tribunal dated may 6, 1996 by making fresh assessments for the periods commencing from 12 months ending march 31, 1983 to 12 months ending march 31, 1994.11. the next contention of the learned counsel for the applicant is that the aforesaid orders of assessment were quashed and the aforesaid direction for fresh assessment was given only in respect of one product, namely, boroplus. the contention is that fresh assessments were unwarranted for sales of other products of the company. this point was argued and also finds mention in paragraph 45(b), (c) and (d) of the written notes. the learned advocate for the respondents did not make a clear statement on this point. but upon a reading of the judgment and order of this tribunal dated may 6, 1996 in rn-11(t) of 1995 it is clear that quashing of orders of assessment and directions for fresh assessments were all related to the turnover in respect of one product, namely, boroplus, and no question arose (neither arises now) regarding the turnover in respect of sales of products other than boroplus. there are several indications in the said judgment and order to this effect. let us quote one sentence towards the end of the said judgment and order to make the position clear : "thus, the writ application is disposed of in so far as it relates to the dispute regarding assessment of boroplus antiseptic cream under the west bengal sales tax act, 1954." hence, mr. r.n. bajoria, learned counsel for the applicant, rightly submitted that no mandate or liberty was given to respondent no. 1 (assessing authority) to make fresh assessments for all the aforesaid periods in respect of sales of products of the company other than boroplus. that being the correct position, the fresh assessments under challenge before us cannot be sustained in respect of sales of products of the company other than boroplus.12. the dispute regarding the true nature of boroplus, whether drug, homeopathic medicine, ayurvedic drug, patent or. proprietary medicine, or cosmetic calls for consideration of relevant notifications issued under the 1954 act and certain provisions of the drugs act. by notification no. 1206-f.t. dated march 26, 1979 rates of tax for notified commodities under 1954 act were fixed with effect from april 1, 1979. sl. nos. 8, 15 and 71 of that notification are pertinent, and quoted below : "8. cosmetics of all varieties, as specified in notification no. 3123-f.t. dated the 15th july, 1975, as amended. 15. (ii) drugs and patent or proprietary medicines, as defined in notification no. 1658-f.t. dated the 1st august, 1956, as subsequently amended. (iii) surgical dressings as defined in notification no. 1658-f.t. dated the 1st august, 1956. 71. ayurvedic (including siddha) and unani drugs, as defined in clause (a) of section 3 of the drugs and cosmetics act, 1940 (23 of 1940), but excluding such items of the said drugs as are covered by notification no. 1658-f.t. dated the 1st august, 1956, as specified in notification no. 3574-f.t. dated the 27th september, 1982." 13. as regards sl. no. 8 of notification no. 1206-f.t. dated march 26, 1979, the relevant part of notification no. 3123-f.t. dated july 15, 1975 reads as under : "cosmetics of all varieties including (i) talcum and other powders for face and skin, (ii) snow and creams of all descriptions and varieties, (iii) depilatories, (iv) blemish removers and beauty milk and cleansing milk, (v) hair dyes and hair darkeners, (vi) hair creams, (vii) hair tonic and hair lotions, (viii) hair spray, (ix) pomade, brilliantine vaseline, (x) alta, (xi) lipsticks, (xii) nail polish, (xiii) eyeliners, (xiv) eye-tex, (xv) rouge, (xvi) bindi, (xvii) after-shave lotions and creams." in the same notification hair oil, shaving instruments and tooth cleaning materials, mouthwashes and deodorants were also notified under the 1954 act.14. as far as sl. no. 15 of notification no. 1206-f.t. is concerned, reference has been made to notification no. 1658-f.t, dated august 1, 1956, as amended. in the said notification no. 1658-f.t. dated august 1, 1956 the items drug, patent or proprietary medicines were notified with the following descriptions : " 'drug' as defined in clause (b) of section 3 of the drugs and cosmetics act, 1940 (23 of 1940) including dicophane (dichloro diphenyl trichloroethane), pyrethrum, renzene hexachloride dieldrin and their preparations, but excluding condoms (a contraceptive device) and chloroquine phosphate tablets." " 'patent or proprietary medicine as defined in clause (h) of section 3 of the drugs and cosmetics act, 1940 (23 of 1940)." 15. sl. no. 71 of notification no. 1206-f.t. refers to notification no.1658-f.t. dated august 1, 1956 as also to notification no. 3574-f.t.dated september 27, 1982. we have already seen what drugs are covered by notification no. 1658-f.t. dated august 1, 1956. sl. no. 71 chiefly refers to notification no. 3574-f.t. dated september 27, 1982 for description of the item. that description is that ayurvedic and unani drugs including siddha as defined in section 3(a) of the drugs act are notified for taxation under the 1954 act, but not all such drugs. drugs which are covered by notification no. 1658-f.t. dated august 1, 1956, which may otherwise fall within description of ayurvedic (including siddha) and unani drugs, were not notified for taxation under the 1954 act.16. when, therefore, items 15 and 71 of notification no. 1206-f.t.dated march 26, 1979 and notification no. 1658-f.t. dated august 1, 1956, as amended and notification no. 3574-f.t. dated september 27, 1982 are read together and harmoniously interpreted (which is unavoidable), it is clear that ayurvedic drug is outside the scope and ambit of notification no. 1658-f.t. dated august 1, 1956 and those ayurvedic drugs which may otherwise fall within drugs and patent or proprietary medicines within notification no. 1658-f.t. dated august 1, 1956 are not to be considered as ayurvedic drugs for the purpose of notification no. 3574-f.t. dated september 27, 1982. in other words, such ayurvedic drugs were not made taxable under the 1954 act.17. "cosmetic" is defined in section 3(aa) of the drugs act. but it is noteworthy that by notification no. 3123-f.t. dated july 15, 1975 definition of "cosmetic" in the drugs act was not referred to. but in notification no. 1658-f.t. dated august 1, 1956 "drug" was notified on the basis of definition in section 3(b) of the drugs act and several other commodities were included in the meaning of "drug" by the device of inclusive definition which is generally extensive in nature (and here it is so). similarly, notification no. 1658-f.t. has brought "patent or proprietary medicine" into the fold of the 1954 act on the basis of definition in section 3(h) of the drugs act. therefore, no reference is ordinarily necessary to the definition of "cosmetic" in the drugs act, but necessarily reference to section 3(b) and section 3(h) of the drugs act should be made for understanding what are to be treated for the purpose of taxation under 1954 act as "drug" and "patent or proprietary medicine". hence, let us quote section 3(b) and section 3(h) of the drugs act : (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) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the central government by notification in the official gazette ; (iii) all substances intended for use as components of a drug including empty gelatin capsules ; and (iv) such device intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the central government by notification in the official gazette, after consultation with the board." (i) in relation to ayurvedic, siddha or unani tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of ayurveda, siddha or unani tibb systems of medicine specified in the first schedule, but does not include a medicine which is administered by parenteral root and also a formula included in the authoritative books as specified in clause (a) ; (ii) in relation to any other systems of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the indian pharmacopoeia for the time being or any other pharmacopoeia authorised in this behalf by the central government after consultation with the drugs technical advisory board constituted under section 5." 18. the claim of the company is that up to october 15, 1987 boroplus was manufactured as a homeopathic medicine according to the homeopathic system, and it has been manufactured since october 30, 1987 as an ayurvedic drug according to ayurvedic system. on the basis of such claim, boroplus is said to be a homeopathic medicine during the periods of 12 months each ending march 31, 1983, march 31, 1984, march 31, 1985, march 31, 1986, march 31, 1987 as well as up to october 15, 1987 (a part of the period of 12 months ending march 31, 1988). it follows, therefore, that the company's claim during the period from october 30, 1987 till march 31, 1988, and during the periods of 12 months each ending march 31, 1989, march 31, 1990, march 31, 1991, march 31, 1992, march 31, 1993 and march 31, 1994 is that boroplus is an ayurvedic drug. these are the periods in dispute before us. despite such claim in the main application, there is a further claim in the same application that boroplus is a drug within the meaning of section 3(b) of the drugs act. moreover, in paragraph 29 of the application the company has contended that the composition of boroplus holds good in respect of ayurvedic drug defined in section 3(a) of the drugs act and in respect of patent or proprietary medicine defined in section 3(h) of the drugs act. simultaneously the company has alleged that no claim was advanced before respondent no. 1 to the effect that boroplus satisfies the definition in section 3(a) of the drugs act. in paragraph 3 of the written notes (filed in july, 1988 after the oral arguments were over) the following statement has been made : "according to the petitioner, boroplus was taxable under sl. no. 15(i) of notification no. 1206-f.t. dated march 26, 1979 read with notification no. 1658-f.t. dated august 1, 1956 as drugs or patent or proprietary medicine." referentially that takes us to the definitions of "drug" and "patent or proprietary medicine" in clauses (b) and (h) of section 3 of the drugs act. from the impugned orders of assessment dated march 25, 1997 passed by respondent no. 1 for the periods in dispute it is clear that the assessing authority considered the materials placed and came to the finding that boroplus was neither a homeopathic medicine (for the period for which it is claimed to be so) nor an ayurvedic medicine or drug (for the period during which it is claimed as such). then he recorded a finding that it was a cosmetic and the assessment of tax proceeded accordingly. in arriving at such finding, respondent no. 1 held, inter alia, that "homeopathic medicines are supposed to be used in single form in dilution", but boroplus was a combination of many ingredients and the method of preparation as laid down by dr. hahnemann was not followed and hence it was not a homeopathic medicine. as regards ayurvedic drug, the assessing authority held, inter alia, that combination of herbs may be an ayurvedic drug, if it is manufactured exclusively in accordance with formula prescribed in authoritative books, and a mere hotch-potch of herbs did not constitute an ayurvedic drug. according to him, ayurveda is itself a medical science and in preparation of ayurvedic drug, the formulations prescribed in authoritative books on ayurveda must be followed. one of his reasonings was that individual ingredients might have medicinal use, but it did not follow that such ingredient or ingredients in combination with any other herbs or ingredients would be an ayurvedic drug. on this point he applied section 3(a) of the drugs act. he also held that boroplus contained very small percentage of herbs, major ingredients being paraffin and lanolin. paraffin and lanolin roughly account for 37 grams in a preparation of boroplus weighing 40 grams. paraffin and lanolin, he observed, were not recognised ingredients of drug in ayurveda, inasmuch as no reference to these things can be found in the authoritative books on ayurveda produced by the applicant. the assessing authority also held that all the reports of clinical test of boroplus produced by the company are "vague, unscientific and unreliable". he also noted that opinions of physicians and others were produced in the form of affidavits couched in identical language and content. he rejected such opinion as merely subjective, as distinct from objective. he referred to the advertisements issued by the company for boroplus and to the common use of the product and held that even the advertisements highlighted only the emollient quality of boroplus on skin, and it could not be established that boroplus had efficacy on cuts and burns. the appeals preferred by the company against the orders of assessment for the several years in dispute were decided by the deputy commissioner of commercial taxes, corporate division, by a common order dated september 8, 1997. the appellate authority noted that the company took as many as four different pleas, (i) boroplus is a homeopathic medicine, (ii) it is an ayurvedic drug, (iii) it is a drug as defined in section 3(b) of the drugs act and (iv) it is a patent or proprietary medicine, as defined in section 3(h) of the drugs act. he also noted that with effect from october 1, 1982 ayurvedic drug as defined in section 3(h) of the drugs act was brought under 1954 act by notification no. 3574-f.t. dated september 27, 1982. in sl. no. 71 of notification no. 1206-f.t. dated september 26, 1979, as amended, ayurvedic drug was described in identical terms as described in the said notification no. 3574-f.t. dated september 27, 1982 (see paragraph 12 of this judgment). section 3(a) of the drugs act was during the relevant periods as under : "3. in this act unless there is anything repugnant in the subject or context,--(a) "ayurvedic, siddha or unani drug" includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of ayurvedic, siddha and unani tibb systems of medicine, specified in the first schedule." in the said first schedule of the drugs act, there is a list of authoritative books on ayurveda numbering as many as 54 plus 2 more (54a and 54b). on that basis the deputy commissioner held : "it is relevant to place on record that ayurvedic medicine remained all along defined in section 3(a) of the drugs and cosmetics act and hence it should not be included within the meaning and definition of "drug" as defined in section 3(b) of the said act." the history of legislation of section 3 of the drugs act is that the definition of simple "drug" was there in clause (b) in the drugs act, though from time to time amendments have been made to it. previously the definition of "the board" was in clause (a) of section 3. by act 13 of 1964 with effect from september 15, 1964 clause (a) being the definition of ayurvedic drug (also siddha or unani drug) was inserted.at that time the old clause (a), being the definition of "the board", was made clause (aa) of section 3. therefore, history of legislation shows that the general definition of "drug" was originally there, when there was no separate definition of ayurvedic drug. later, definition of ayurvedic drug was given in section 3(a). a special provision derogates from a general one ; in other words, the special provision of ayurvedic drug has the effect that ayurvedic drug should follow the definition in section 3(a), and not the general definition of "drug" in section 3(b). therefore, in my opinion, the deputy commissioner, as the appellate authority, rightly held that ayurvedic drug would not follow the definition in section 3(b). in this connection reference may be made to the case of lshwar singh bindra v. state of u.p. air 1968 sc 1450 wherein it was held that the scheme of section 3(b)(i) of the drugs act apparently was to take in all medicines or substances with the exception of such medicines or substances which are exclusively used or prepared for use in accordance with the ayurvedic or unani system of medicine.19. but the said appellate authority, in my opinion, committed a mistake in holding that the definition of "patent or proprietary medicine" in section 3(h) of the drugs act was not adopted by reference in any of the entries in the relevant notifications. it is to be noted that the definition of "patent or proprietary medicine" was originally in clause (d) of section 3, but with effect from march 16, 1961, clause (d) was relettered as clause (h) which is the definition of the said expression. sl. no. 15(i) of notification no. 1206-f.t. dated march 26, 1979 refers to notification no. 1658-f.t. dated august 1, 1956, as amended, in respect of drugs and patent or proprietary medicines. from notification no. 1658-f.t. dated august 1, 1956 i find that "patent or proprietary medicine" is mentioned there as defined in section 3(h) of the drugs act. that being so, it is not correct, as held by the deputy commissioner, that "patent or proprietary medicine should not be understood under the 1954 act with reference to the definition in section 3(h) of the drugs act." it must be held that "patent or proprietary medicine" should be understood according to the definition in section 3(h) of the drugs act.20. the appellate authority held that a homeopathic medicine or drug is to be understood according to rule 2(dd) of the drugs and cosmetics rules, 1955 (in short, "the drugs rules"). he also held that boroplus sold as homeopathic antiseptic cream was not a homeopathic medicine, because provings and therapeutic use thereof are not recorded in authoritative homeopathic literature. according to him, for the same reasons the company's claim that boroplus was a patent or proprietary medicine cannot be accepted.21. the questions involved in these applications are mixed questions of law and fact. it has neither been argued nor shown to us that the findings of fact arrived at by respondent no. 1 and the appellate authority are either perverse or without any basis except on one point, namely, that combination of homeopathic medicines is not permitted. we are not required to make, as it were, a fresh assessment of facts except that while examining the claims of the applicant-company vis-a-vis the findings of respondent no. 1 and the appellate authority, it may be necessary to refer to relevant documents.22. the first claim has always been that up to october 15, 1987 boroplus was manufactured according to homeopathic system of medicine, hence it was a homeopathic medicine or drug. at the hearing before us mr. r.n. bajoria, learned advocate appearing for the applicant-company, submitted that the claim of the applicant-company is that boroplus, whether manufactured according to homeopathic system or ayurvedic system, was a drug in the general sense as defined in section 3(b) of the drugs act. thereby, he conveyed the idea to us that the company was not interested in pushing its claims that boroplus was either a homeopathic medicine or an ayurvedic drug. but on a scrutiny of the orders of assessment and the combined appellate order, it will appear that all along the case of the company has been that up to october 15, 1987 boroplus was sold as a homeopathic medicine or drug, because it was manufactured at that time according to homeopathic system of medicine. similarly, all along the other claim of the company has been that since october 30, 1987 boroplus was manufactured according to ayurvedic system of medicine, and hence it should be treated for the purpose of taxation as an ayurvedic drug. a drug licence under the drugs act is not a conclusive evidence of the fact that for the purpose of taxation under the 1954 act the product is a drug ; it is a piece of evidence which should be considered by the assessing authority under the taxing law in course of making an assessment ; but the assessing officer should draw his own conclusion as a quasi-judicial authority and he is not bound by what is stated in a drug licence. when we examine the drug licence of boroplus as a homeopathic medicine, annexure e at page 21 of the application, we find that boroplus was described as "himani boroplus" and the licence was initially issued for the period from july 16, 1982 to december 31, 1983. it clearly mentioned at the top that it was issued for manufacture of homeopathic medicines for sale. in the annexed list of drugs the product is described as ointment homeopathic medicine. the composition of a 21 gram packing is boric acid 5 mg, zinc oxide 10 mg, berberis aquifolium .1 ml, calendula officinalis .1 ml (for these four ingredients references have been made to different homeopathic pharmacopoeia), rectified spirit .13 ml, lanolin, paraffin and perfume q.s. (for the last three ingredients no reference has been made to any authoritative book or any homeopathic pharmacopoeia). on the carton as well as in the promotional literature it has been prominently displayed that it is a homeopathic medicine. in this formula the proportion of boric acid is about .024 per cent w/w. in comparison, refer to p. 119 (illustration no. 1) of e.g. thomssen's "modern cosmetics" where an admitted cosmetic, viz., lanolin cream contains about .294 per cent of boric acid w/w. so, mere such low presence of boric acid or any other antiseptic agent in boroplus should not make it a drug in any sense of the term. from annexure g, central sales tax registration certificate, it will be seen that boroplus was mentioned as homeopathic medicine.the same description can be found from the state sales tax registration certificate at annexure page 30. from the orders of assessment and the appellate order in respect of the periods in dispute, it can be clearly seen that the company was pursuing its claim that up to october 15, 1987 boroplus was manufactured and sold as a homeopathic medicine.therefore, let us at first examine whether any such claim can be said to have been substantiated, or whether in this respect respondent no. 1 and the appellate authority arrived at erroneous findings, homeopathic medicine is not defined in section 3 of the drugs act. it is comprehended within the general definition of "drug" in section 3(b) of the drugs act. under section 3(b)(i) all medicines except those which are separately defined in section 3, are included in the expression "drug". therefore, homeopathic medicines are also included in the expression "drug". but under the drugs act, homeopathic medicine has been defined by an inclusive definition in rule 2(dd) of the drugs and cosmetics rules, 1945 (in short, "the drugs rules"). the definition being inclusive in nature, it comprehends normal homeopathic medicines as understood in common parlance (regarding which discussion later). by the inclusive part, the definition is extended to homeopathic drug recorded in homeopathic provings or therapeutic efficacy of which has been established and which is prepared according to homeopathic pharmacy techniques. the inclusive part of the definition clearly states that it covers combination of ingredients of "such" homeopathic medicines meaning thereby all homeopathic medicines therapeutic efficacy of which has been established and which is prepared according to homeopathic pharmacy techniques. normal homeopathic medicine (as known in common parlance) cannot be obviously an article which is arbitrarily or loosely or ignorantly mentioned as homeopathic medicine.in common parlance, homeopathic medicine must be a medicine which is understood by sellers and buyers as homeopathic medicine, and it is common knowledge that homeopathic medicines are sold in homeopathic dispensaries and those are manufactured and thereafter diluted according to principles laid down in authoritative books of homeopathic pharmacopoeia. "homeopathic medicine" is a technical term. hence in common parlance it should be understood in its technical sense on the principle that the legislature used it in that sense (reliance cellulose products ltd. v. collector of central excise, hyderabad-1 air 1997 sc 3414 and akbar badrudin jiwani of bombay v. collector of customs, bombay air 1990 sc 1579). therefore, if the applicant-company's claim that up to october 15, 1987 boroplus was sold as homeopathic medicine, it must be shown that either it was a normal homeopathic medicine as understood in common parlance or technical sense (both being identical) or it came within the inclusive part of the definition in rule 2(dd) of the drugs rules. even the applicant-company itself has not claimed that boroplus was generally sold from homeopathic drug stores. lanolin, paraffin and perfume by themselves cannot by any stretch of imagination be said to be homeopathic medicines, as understood in common parlance or technical sense. in fact, being a combination of more than one ingredient, boroplus, if at all, may claim the shield of the inclusive part of the definition in rule 2(dd) of the drugs rules, because combination of ingredients is expressly mentioned in that definition. but in order to come under the definition of rule 2(dd) a homeopathic medicine should be a drug which is recorded in homeopathic provings. the applicant-company has failed to prove that homeopathic provings have recorded himani boroplus as a homeopathic medicine. in order to come within the inclusive part of the definition in rule 2(dd), the alternative route is to show that therapeutic efficacy of boroplus has been established through long clinical experience as recorded in authoritative homeopathic literature of india and abroad and (namely, both the conditions must be fulfilled) which is prepared according to the techniques of homeopathic pharmacy. in spite of voluminous papers and documents filed before the assessing and appellate authorities as well as before us, there is nothing to show that boroplus was manufactured according to homeopathic pharmacy techniques, and therapeutic efficacy of boroplus was recorded in authoritative homeopathic literature of india and (not or) abroad. it may be mentioned at this stage that part vii-a of the drugs rules relates to manufacture for sale of homeopathic medicines and the drug licence issued to the company was issued under rule 85-d, as will appear from annexure e at page 21. rule 85-d is quoted below : "licence for manufacture of homeopathic medicines is a licence to manufacture potentised preparations from back potencies by pharmacies who are already licensed to sell homeopathic medicines by retail, and shall be granted in form 25-c." the drug licence of the applicant-company is also in form 25-c. it is not necessary to enter into the question whether drug licence in form 25-c issued under rule 85-d was appropriate for manufacture of boroplus with the ingredients as they were. the applicant has not furnished any tube or carton of homeopathic boroplus for our examination. but the company has furnished photocopy of a carton and literature of homeopathic boroplus. from these, i find that on the carton himani boroplus was clearly claimed to be homeopathic medicine and to be a protective and soothing emollient for chapped skin, cracked nipples, minor cuts, burns and dry skin diseases. it will be further seen from the literature that boroplus was claimed to be homeopathic ointment (not a cosmetic or a toilet preparation), a homeopathic medicine and an antiseptic cream. in bold print it was claimed that boroplus could give the extra goodness only nature could give. two things emerge from these papers : (1) that applicant claims it to be a homeopathic medicine/ointment, thereby showing that the claim that it is a drug in the general sense was not there ; and (2) that it was not claimed vide rule 2(dd) that it was a drug recorded in homeopathic provings, or its therapeutic efficacy had been established through long clinical experience as recorded in authoritative homeopathic literature of india and abroad, and that it was prepared according to homeopathic pharmacy techniques. i wish to discuss a question (not argued before us) for clearing confusion, if any. the question is : whether definition in rule 2(dd) will come into play for consideration of a product in terms of section 3(b) of the drugs act. in my opinion, rule 2(dd) is the definition which must be followed in rule 85-d under which drug licence was issued, because there is nothing repugnant in the subject or context. for interpreting section 3(b) in relation to a product claimed to be a homeopathic medicine, application of rule 2(dd) is unavoidable and mandatory. following sukhdev singh v. bhagatram sardar singh raghuvanshidr. prakash chandra tiwari v. state of madhya pradesh air 1976 mp 50 that the drugs and cosmetics rules, 1945 being made under the drugs and cosmetics act, have full force and effect, as if they were part and parcel of the act itself. in the case of dr. gourpada sarkar v. west bengal commercial taxes appellate and revisional board rn-3/97 reported in (1999) 113 stc 474 (wbtt)(case relating to product called arnika plus hair vitalizer and triofer tablets) decided by this tribunal on february 20, 1998 it was held that without provings or recognition of therapeutic efficacy in authoritative homeopathic literature, a product cannot be treated as a homeopathic medicine. in other words, no one can be permitted in law to claim any article as a homeopathic medicine without homeopathic provings or such recognised therapeutic efficacy. in fact, in common parlance or technical sense also, a homeopathic medicine is understood to be so because its therapeutic efficacy is well-known for a long period not on the basis of rumours or gossips or even certificates, but on the basis of recordings of provings in authoritative books. as regards boroplus, claimed to be homeopathic medicines no such recording of proving or therapeutic efficacy has been shown. various certificates or letters produced by the applicant regarding homeopathic boroplus cannot substitute authoritative books on provings or therapeutic efficacy. the assessing authority and the appellate authority did not think that those certificates and letters, etc., are dependable. after due scrutiny i find no reason to differ from their views. as regards clinical tests for drugs (about homeopathic provings discussion later, see paragraph 22b), the standard procedure to be followed in general is laid down as under in the well-known book --"a short text book of medical statistics" (eleventh edition), by sir austin bradford hill, chapter 20 on clinical trials : " 'therapeutics, said sir george pickering in his presidential address to the section of experimental medicine and therapeutics of the royal society of medicine', is the branch of medicines that, by its very nature, should be experimental. for if we take a patient afflicted with a malady, and we alter his conditions of life, either by dieting him, or by putting him to bed, or by administering to him a drug, or by performing on him an operation, we are performing an experiment. and if we are scientifically minded we should record the results. before concluding that the change for better or for worse in the patient is due to the specific treatment employed, we must ascertain whether the result can be repeated a significant number of times in similar patients, whether the result was merely due to the natural history of the disease or in other words to the lapse of time, or whether it was due to some other factor which was necessarily associated with the therapeutic measure in question. and if, as a result of these procedures we learn that the therapeutic measure employed produces a significant, though not very pronounced, improvement, we would experiment with the method, altering dosage or other detail to see if it can be improved. this would be seen the procedure to be expected of men with six years of scientific training behind them. [the reference of six years was obviously to medical graduates who spent six years to graduate.]..................... it would be difficult to put the case for the clinical trial of new (or old) remedies more cogently or more clearly...............the basic requirement of clinical trials is comparison. in their most exacting form they call for concurrent 'controls', in other words a group of patients corresponding in their characteristics to the specially treated group but not given that special treatment. the question at issue, then, is whether it is proper to withhold from any patient or treatment that might, perhaps, give him benefit.............. the problem will clearly turn in part, and after very considerably, upon what is at stake. if, for example, it be a question of treating the common cold in young adults and seeing whether the duration of "illness" can be effectively reduced, then the morality of a rigidly controlled trial would not be seriously in doubt and any other form of trial would probably be uninformative and waste of time and money. at the other extreme it might be quite impossible to withhold, even temporarily, any treatment for a disease in which life or death, or serious after-effects, were at stake." 22a. a reference in this connection may also be made to "planning of experiment" by d.r. cox (publisher : wiley). different kinds of comparison and randomization can be found from the said book. there is no evidence in the instant case that in the case of homeopathic boroplus any such clinical trials were held or, if held, what was the result. accordingly, i must agree with the findings of the authorities below that homeopathic boroplus could not be treated as a homeopathic medicine or a drug within the meaning of section 3(b) of the drugs act.22b. in homeopathy, provings are the soul and spirit of medicines meant for application to patients. in the preface to "a repertory of hering's guiding symptoms of our materia medica" by calvin b. knerr, m.d.(reprinted in 1935 by m. bhattacharyya & co., calcutta) the author said : "as in the guiding symptoms, so in the repertory, original readings, the words of the prover and the clinician are preserved to the letter, it being thought preferable to retain the most delicate shades of meaning, occasionally even different wordings of the same symptom, by taking refuge in an extra rubric or cross-reference, sooner than amalgamate, fuse or commingle in vague generalization at the sacrifice of individuality." in boenninghausen's "therapeutic pocket book for homeopathic physicians" 4th american edition, by dr. t.f. allen, boericke & tafel, philadelphia, 1925, the original preface by boenninghausen states, inter alia : "if many symptoms are incomplete, either because the part of the body or the kind of sensation is not clearly indicated, or, what is most frequent, because the aggravations or ameliorations, according to time or circumstances, are omitted, the difficulties of correct apprehension and the judgment of the value of such symptoms for the necessities of curing are greatly increased, for the characteristic never shows itself in a single symptom, however complete it may be, since the individuality of the prover exercises an influence over the proving which easily misleads and since also secondary symptoms creep in together with alternate effects of inferior worth, and since in general the worth or worthlessness of most symptoms can be ascertained only by means of painstaking comparisons of the whole, never from the materia medica pura just at the moment it is required without previous study." the significance of "painstaking comparisons" and unbiased "proving" can be appreciated from the fact that selection of the appropriate homeopathic medicine chiefly depends on correct identification of characteristics or guiding symptoms, and that depends on unbiased proving by way of painstaking comparisons (see dr. kent's "lectures on homeopathic philosophy", lecture xxxii, the value of symptoms). dr.kent said in lecture xxviii, under the title "the study of provings", of "lectures on homeopathic philosophy" (memorial edition, 1929, published by ehrhart & karl) : "the best way to study a remedy is to make a proving of it. suppose we were about to do that ; suppose this class were entering upon a proving. each member of the class would devote, say, a week, in examining carefully all the symptoms that he or she is the victim of, or believes himself or herself to be the victim of, at the present time, and for many months back. each student then proceeds to write down carefully all these symptoms and places them by themselves. this group of symptoms is recognised as the diseased state of that individual. a master-prover is decided upon, who will prepare for the proving a substance unknown to the class and to all the provers, known only to himself. he will begin with the first or earliest form of the drug, it may be the tincture, and potentize it to the 30th potency, putting a portion of that potency into a separate vial for each member of the class. the provers do not know what they are taking, and they are requested not to make known to each other their symptoms. when their own original symptoms appear in the proving the effect of the remedy upon any one of these chronic symptoms is simply noted, whether cured or exaggerated, or whether not interfered with ; but when the symptom occurs in its natural way, without being increased or diminished, it may be looked upon as one of the natural things of that particular prover, and hence all the natural things of the prover are eliminated..............after the master prover deals out these vials, each prover takes a single dose of the medicine and waits to see if the single dose takes effect...................(the lecture goes on about the method).................it is highly important to wait until the possible prodrome of a given remedy is surely passed. if it is a shortacting remedy, the action will come from the above it will be seen that a homeopathic medicine is not just something which is merely claimed to be so or which contains some homeopathic preparations. the ultimate product must pass through rigorous provings according to methods prescribed in homeopathic authoritative books. in the case of boroplus, the materials relied on by the company do not show any such provings.23. the next claim of the company has all along been that boroplus was manufactured and sold with effect from october 30, 1987 as an ayurvedic drug manufactured according to ayurvedic system of medicine. at the time of hearing before us, however, arguments were so made on behalf of the company, that the claim as ayurvedic drug was relegated to the background (not wholly abandoned perhaps) and what was emphasised and highlighted was the claim that boroplus should be treated as "drug" in the general sense within the definition in section 3(b) of the drugs act. for clarity of discussion, i am first taking up the original claim that since october 30, 1987 boroplus was manufactured and sold as ayurvedic drug.24. in the foregoing paragraph 18a i have already held that since september 15, 1964 when clause (a) was inserted in section 3 of the drugs act, ayurvedic drug would go by the definition in section 3(a) and would not be comprehended in the definition of section 3(b), being the general definition of "drug". from the discussion in the foregoing paragraph 12 it will be seen that ayurvedic drugs as defined in section 3(a) of the drugs act were brought under the purview of the 1954 act for the purpose of sales tax. the definition has, already been reproduced (paragraph 18a). it is also an inclusive definition. that means, ayurvedic drugs as understood in common parlance or in technical sense are ayurvedic drugs under section 3(a). moreover, the inclusive part extends to other medicines, one of the conditions attached to which is that those should be "manufactured exclusively in accordance with the formulae described in the authoritative books of ayurvedic, siddha and unani tibb systems of medicine, specified in the first schedule" (to the drugs act). so, there are those two categories of ayurvedic drugs envisaged in section 3(a). next, what is ayurvedic drug as understood in common parlance or in technical sense it is a drug prepared according to authoritative books on ayurveda and generally sold under well-known ayurvedic brands or names from ayurvedic drug stores or by ayurvedic practitioners. the moment a buyer needs to buy an ayurvedic drug he conceives of only such ayurvedic preparations.despite voluminous materials in the form of letters, certificates, reports, etc., produced by the company, it has not been established that boroplus is known in common parlance or in technical sense as an ayurvedic drug, or that boroplus is considered by buyers of ayurvedic drug as an ayurvedic drug or it is generally sold from ayurvedic drug stores or by ayurvedic practitioners. therefore, there should be no hesitation to hold that boroplus is not an ayurvedic drug as understood in common parlance or in technical sense, the next question is, whether boroplus is an ayurvedic drug according to the inclusive part of the definition in section 3(a) of the drugs act. a mandatory condition for attracting the inclusive part of the definition is that the medicine must be manufactured exclusively in accordance with the formulae described in the authoritative books of ayurvedic, siddha and unani tibb systems of medicine, specified in the first schedule to the drugs act. it has neither been claimed nor shown that boroplus was or has been manufactured since october 30, 1987 exclusively in accordance with any formula in the aforesaid books. on the other hand, the company has been only claiming that the ingredients of ayurvedic boroplus (as distinct from boroplus itself) possess curative property according to books on ayurveda. in this type of claim, there are two important aspects for consideration in terms of section 3(a). the books on ayurveda wherein curative property of ingredients are recorded or said to be recorded must be the books specified in the first schedule to the drugs act. even if so, the product called boroplus which is a combination of several ingredients may or may not ultimately produce the curative effect of individual ingredients, unless tried and experimented scientifically, according to the system of ayurveda, and found to be so. the company furnished for our consideration a tube of ayurvedic boroplus with its carton. the tube announces that it contains extract of calendula - 0.4 per cent, chandan - 0.1 per cent, ushir - 0.3 per cent, ghreetakumari - 0.3 per cent, tulsi - 0.8 per cent, jatamansi - 0.1 per cent, saussurealappa - 0.5 per cent, aguru -0.4 per cent, daruharidra - 0.4 per cent, jasad bhasme (zinc oxide) - 1.8 per cent, tankan amla (boric acid) - 0.8 per cent, surasar (alcohol) - 0.7 per cent, v/w and ointment vehicle q.s. this composition is given for a tube of 20 grams. therefore, the totality of ingredients other than ointment vehicle comes to 6.6 gms. out of 20 gms. hence, ointment vehicle itself represents 13.4 gms., being more than 200 per cent of other ingredients which are claimed to be ayurvedic ingredients. no arguments was advanced and no document has been shown to us to the effect that the ointment vehicle is an ayurvedic ingredient, or considered to be so in any authoritative book of ayurveda specified in the first schedule. nor has it been shown to us with reference to any documents that boroplus was manufactured according to a formula described in the books specified in the first schedule. rather it is clearly admitted by the company that the formula of ayurvedic boroplus was devised by alleged research in its own laboratory. thus, it is undisputed that the formula of boroplus is not to be found in any authoritative book of ayurveda specified in the first schedule.therefore, boroplus does not come under the inclusive part of the definition in section 3(a).25. while discussing homeopathic boroplus, i have quoted from an authoritative book by sir bradford hill how a drug must be given scientific and rigorous clinical trial for becoming a drug. therapeutic efficacy or, in simple terms, curative, preventive and diagnostic property of a drug must be ascertained and established, generally in any kind of recognised system of medicine, before a product can be claimed to be a drug within the definition of section 3(a), section 3(b) which includes rule 2(dd) of the drugs rules and also section 3(h) of the drugs act. the special mode of proving in homeopathy has also been noted. such ascertainment or proving has neither been claimed nor shown to us in respect of the claims put forward by the company. that being so, boroplus, as manufactured and sold with effect from october 30, 1987, cannot be said to be an ayurvedic drug within the meaning of section 3(a).26. before we proceed to examine the claim of the applicant (covering both the periods during which boroplus was manufactured and sold as homeopathic medicine and ayurvedic drug) that during the entire combined period boroplus was a "drug" within the meaning of section 3(b) of the drugs act, it is to be noted that like the definition of homeopathic medicine in rule 2(dd) and the definition of ayurvedic drug in section 3{a), the definition of "drug" in section 3(b) is an inclusive definition. generally, in law, an inclusive definition is extensive ; it enlarges the natural or original meaning of the term defined. but cases are not very rare where apparently inclusive definitions are nothing but exhaustive definitions, that is to say, the inclusive definition is the whole of the definition. in other words, there are cases where the word "includes" in a definition must be interpreted as "means". i have examined homeopathic and ayurvedic boroplus against the touch-stones of definitions in rule 2(dd) and section 3(a) on the basis of the general rule of interpreting the said definitions as extensive, as distinct from exhaustive. but in all the three definitions in rule 2(dd), section 3(a) and section 3(b) the interpretation should be, in my opinion, that the inclusive part is really the guiding principle of the definition ; in other words, the word "includes" should be read as "means". from the context in which the definitions are to be used, it is essential to interpret the definitions that way. from another angle also, the said interpretation should be adopted by all these three definitions for a different reason, namely, a drug, homeopathic medicine or ayurvedic drug as understood in common parlance or in technical sense, and as defined in the inclusive part are ultimately identical, the natural, or, technical, or original (common parlance) meaning of the terms, if any, and the meaning ascribed to them in the inclusive parts of the definitions, converge and reach the same destination. as per understanding in common parlance or technical sense, a "drug" or a homeopathic medicine or an ayurvedic drug is only such a product which has all the effects envisaged in the inclusive parts of the definitions and which are manufactured according to the said inclusive parts. in the definition of "drug" in section 3(b) there is no express requirement that it should be manufactured or prepared according to a particular system of medicine or according to any authoritative books or literature, as stated in section 3(a) and rule 2(dd). yet an interpretation contrary to the public policy should be avoided. public policy certainly does not approve of anybody preparing a product according to his own technique, whether scientifically acceptable or not acceptable. therefore, even though section 3(b) does not expressly say that a particular technique or system should be followed in manufacture of a drug, it is necessarily implied that a product in order to be a drug must be prepared or manufactured according to a scientifically accepted technique or system of medicine. it is difficult to conceive how the company can be allowed to put forward a claim that we should forget whether it is a homeopathic medicine or an ayurvedic drug, but accept it as a "drug" under section 3(b). if the drug licence (not conclusive in assessment of tax) was voluntarily obtained for the respective periods as a homeopathic medicine and as ayurvedic drug, it is not permissible to contend that beyond homeopathy and beyond ayurveda, boroplus should be accepted as a "drug" in section 3(b). section 3(b) of course includes a homeopathic medicine. there is a clear contradiction in the alternative claims made by the company.from annexure page 190, letter no. dcwb/ayv-832/3772 dated december 11, 1987 and other documents relating to ayurvedic boroplus it appears that the company applied for licence as ayurvedic drug on february 24, 1987, when the drugs controller (vide his letter no. dcwb/ayv-832/1345 dated may 21, 1987) asked for discontinuation of production under the homeopathic licence. ultimately by the said letter dated december 11, 1987 the additional director of drugs control certified that the company was granted licence no. ai-511-5 to manufacture for sale some ayurvedic products including himani boroplus anticeptic cream. the actual drug licence as an ayurvedic product said to be issued in the year 1987 has not, however, been shown to us. it appears that at a subsequent stage the company gave a franchise for manufacture of ayurvedic boroplus to kern research pvt. ltd. the ayurvedic drug licence for manufacture of boroplus granted to the said other company for the period from march 3, 1993 to december 31, 1994 has been annexed to the supplementary affidavit as annexure vi at pages 268 and 269.from page 269 it appears that some of the ingredients are claimed to be mentioned in various books on ayurveda. those ingredients represent 0.49 per cent of the product. the percentage of surasar extract (alcohol) v/w is mentioned as 0.7 per cent. the said list of ingredients also mentions preservative q.s. and further mentions (which is significant) that the product is incorporated "in stable ointment vehicle with lanoline, paraffin, odouriferous substances, etc., q.s." the said list of ingredients attached to the ayurvedic drug licence does not claim that surasar extract, preservative or ointment vehicle are mentioned in any books on ayurveda. but in letter no.dcwb/ayv-832/part/i/98 dated january 10, 1997 (which is not in the relevant drug licence form) ingredients of boroplus are stated and therein surasar (alcohol) is said to be mentioned in several books on ayurveda. but here also the ointment vehicle, i.e., lanoline, wax, paraffin oil and several other substances are not claimed to be so.thus, it is undisputed that there are some ingredients in ayurvedic boroplus which are not recognised or mentioned in authoritative books on ayurveda. such a product cannot be an ayurvedic drug under section 3(a) and also very clearly cannot be a "drug" under section 3(b) in the general sense [assuming for argument's sake that section 3(b) may be invoked], because nothing has been shown to us to the effect that recognised scientific experiments and clinical trials have been conducted on the product and the result has been found to be positive for use as a drug. some reliance was sought to be placed on a letter of the public relations officer attached to the directorate of commercial taxes being memo no. 502 ct dated january 10, 1984 in which the officer said that boroplus is a drug within the meaning of "drug" as defined in the drugs act and taxable under the 1954 act. he stated the rates of taxes for various sales. it is well-settled that letters of this kind issued by public relations officer of commercial taxes directorate are mere administrative letters having no statutory support. at the time of assessment a product is considered by the assessing authority in his quasi-judicial capacity. in that capacity, the assessing authority cannot allow himself to be influenced by any such purely administrative communication having no statutory support. moreover, the company wanted to know the rate of taxes to be charged on sales, and the public relations officer mentioned the rates of taxes on the basis of the claim of the company that it was a drug. such an officer had no occasion or jurisdiction to determine whether the product was really a "drug" or not under the 1954 act. hence, no importance can be attached to the said letter.27. it will bear repetition, but is necessary to once again say that the letters, certificates, reports, etc., produced by the company from various persons including medical practitioners in homeopathy and ayurveda do not serve any real purpose. because they do not establish that either boroplus is understood in common parlance or in technical sense as a drug. homeopathic medicine or ayurvedic drug, or that the product has been clinically tried according to scientific principles or (in homeopathy) provings were recorded and found to be a drug. if a product does not come within the relevant definitions, any number of such documents cannot make it a "drug" for the purpose of taxation under the 1954 act. some arguments were made that boroplus was prescribed by some practitioners, and that those were sold by some resellers who possessed drug licences. these circumstances do not establish that boroplus is a "drug" of any of the three aforesaid categories. sometimes a doctor prescribes special food for a patient.simply because a food has been specially prescribed, a food item does not become a drug or medicine. the primary object of a doctor is to render relief to the sufferings of his patient. he does not always restrict his prescription to those items which are strictly drugs. he may, for example, suggest that a cosmetic cream should be used for some relief. that does not mean that the cosmetic cream is a drug. to relieve pain on parts of bodies, doctors generally prescribe in suitable cases warm compress. therefore, it cannot be said that the hot water bag or a bottle containing hot water is a drug. these are few examples to demonstrate that everything prescribed by a doctor is not necessarily a drug.28. we should now examine the company's claim that boroplus (namely, the ayurvedic boroplus) is a patent or proprietary medicine as defined in section 3(h) of the drugs act. it is to be noted that the definition in section 3(h) is not an inclusive one. it is an exhaustive definition. patent or proprietary medicine in relation to ayurvedic boroplus means a formulation containing only such ingredients "mentioned in the formulae described in the authoritative books on ayurveda.............specified in the first schedule..................and also a formulation indicated in the authoritative books as specified in clause (a)" of section 3.therefore, basically a patent or proprietary medicine is a formulation according to a formula described in the authoritative books of ayurveda specified in the first schedule to the drugs act. in other words, a patent or proprietary medicine cannot be anything other than such a formulation. the bold assertion of the company is that ayurvedic boroplus was formulated by it in its own laboratory. it has not been either claimed or shown that the formulation of ayurvedic boroplus has been described in an authoritative book on ayurveda specified in the first schedule. on that ground alone boroplus shall not come under the definition in section 3(h).29. apart from the specific claims within the definitions in section 3(a), section 3(h), section 3(b) read with rule 2(dd), the learned counsel for the company stressed the claim that after all, boroplus is a "drug" within the general conception in the definition in section 3(b). i have already dealt with that question. it may be added that therapeutic efficacy or the virtue of usefulness in diagnosis, treatment, mitigation or prevention of a disease or disorder in human beings or animals is the one single test to determine whether a formulation is a drug or not. and this is common to a drug understood in common parlance or in technical sense as well as defined in the inclusive part of the definition in section 3(b). no distinction can be identified between the common parlance meaning or technical sense and the definition in the inclusive part. even at the risk of repetition, i should say that without any proof of scientific clinical trials according to authoritative books on methods of clinical trials (or without provings in case of homeopathic medicines), no claim can be entertained that boroplus is a "drug" within the meaning of section 3(b). reports and certificates relied on by the company (which we need not discuss in detail) did not follow the standard methods of provings or scientific methods of clinical trials. having devoted ray most anxious consideration to those documents, i have not been able to consider them either trustworthy or scientific. mr. r.n. bajoria, learned advocate for the company relied on a decision of the high court at calcutta in the case of union of india v. g.d. pharmaceuticals ltd. [2000] 118 stc 19 at 20 (regarding the product boroline) dated december 5, 1996 in appeal no. 163 of 1996 arising out of c.o. no. 14000(w) of 1985, the supreme court of india by order dated september 15, 1997 dismissed the special leave petition preferred from the aforesaid judgment of the high court. mr. k.k. saha, learned advocate for the respondents, distinguished the aforesaid case. the case of boroline as decided by the high court at calcutta in the aforesaid judgment dated december 5, 1996 related to a central excise matter, and hence having regard to tariff entries (discussed below) it is distinguishable from the present case. the case of boroline was different from another angle also. boroline was not claimed as either a homeopathic medicine or an ayurvedic drug. mr. bajoria drew our attention, with reference to boroline, to heading no. 30.03--medicaments (including veterinary medicaments), and subheading no. 3003.10 which reads "patent or proprietary medicaments other than those medicaments which are exclusively ayurvedic, unani, siddha, homeopathic or bio-chemic" in the central excise tariff. it will appear therefrom that unlike boroline, boroplus manufactured according to either homeopathic system of medicine or ayurvedic system of medicine does not fall in sub-heading no. 3003.10 of central excise tariff. in this connection possibly a reference may be made for comparison to sub-heading no. 3003.31 of central excise tariff which clearly lays down that a product in order to come under that sub-heading should be manufactured exclusively in accordance with formulae described in the authoritative books specified in the first schedule to the drugs act or homeopathic pharmacopoeia of india or the united states of america or the united kingdom or the german homeopathic pharmacopoeia, as the case may be, and sold under the name as specified in such books of pharmacopoeia. it is relevant to refer to the decision in state of goa v. leukoplast (india) ltd. [1997] 105 stc 318 (sc) ; air 1997 sc 1875 in which, with reference to a case of similar nature as that of boroplus, it was held that it was a question of fact, and medicinal content, if any, and its curative function should be found out first. i have indicated in this judgment that the method of finding but the curative function cannot vary from person to person or manufacturer to manufacturer. the method must be according to scientific authoritative books. during oral arguments, reference was made to the decision of this tribunal in commissioner of commercial taxes v. west bengal commercial taxes tribunal [1993] 89 stc 355 (regarding taxability of boroline). mr. r.n. bajoria, counsel for the company, submitted that the said decision does not apply to the present case. in fact, in paragraph 46(a) at page 86 of the "written notes" submitted on behalf of the company the following submission has been made : "it is submitted that the said decision of this honourable tribunal has got no relevance whatsoever in the instant case.........." we also think so. however, on august 26, 1998 the company filed a copy of order dated august 6, 1998 of the supreme court of india in the boroline case (civil appeal no. 704 of 1993) along with an affidavit.by the said order, the judgment of this tribunal in commissioner of commercial taxes v. west bengal commercial taxes tribunal [1993] 89 stc 355 was set aside on the basis of concession made by the learned solicitor-general appearing on behalf of the respondents. since the case of boroline is much different from the present case, the order of the supreme court does not assist the applicant-company either.30. thus we have seen so far that none of the claims of the company, namely, that boroplus is a homeopathic medicine for a certain period, that it is an ayurvedic drug for a certain period, that it is a drug in the general sense under section 3(b) of the drugs act, and that it is a patent or proprietary medicine under section 3(h) of the drugs act, can be accepted. the authorities below have assessed sales of boroplus as a cosmetic. i have already pointed out that under the 1954 act, unlike drug, cosmetic has not been notified according to definition of "cosmetic" in the drugs act. the relevant entry in the notification has been quoted in the foregoing paragraph 13 of this judgment. it was argued on behalf of the company that the onus of establishing that boroplus comes within the entry of cosmetic under notification no.3123-f.t. dated july 15, 1975 read with notification no. 1206-f.t.dated march 26, 1979 is on the revenue. as regards interpretation of the entry, mr. r.n. bajoria, learned counsel for the company, relied on pardeep aggarbatti v. state of punjab [1997] 107 stc 561 (sc). in that case it was held that entries in schedules to sales tax and excise statutes list some articles separately and some articles are grouped together ; when they are grouped together, each word in the entry draws colour from the other words therein according to the principle of noscitur a sociis. in the present case, "cosmetics of all varieties" have been grouped together with various items. accordingly, the meaning of "cosmetics" should be drawn from a consideration of the entire entry. although in common parlance a cosmetic is an article which is meant for beautification or promoting attractiveness of human body, several articles have been included in the relevant entry which have directly or indirectly certain qualities of mitigation or prevention of disorders in human beings. for instance, blemish removers, cleansing milk and depilatories (hair removers) are also included in the same entry. on this question it is difficult to disagree with the findings of fact arrived at by the authorities below. although in respect of both homeopathic and ayurvedic boroplus it has been claimed that it is an antiseptic cream, at the same time in respect of homeopathic boroplus it was stated that it was soothingly perfumed and that it was a protective and soothing emollient for chapped skin, cracked nipples, minor cuts, burns and dry skin diseases. on the carton of ayurvedic boroplus it is claimed that it is an antiseptic cream (which is undisputed) and is "a preventive, curative and healing ayurvedic ointment for dry skin diseases, cuts, scratches, minor burns, wounds, cold sores, chapped skin, furuncle, impetigo and intertrigo". mr, bajoria, appearing for the company, relied on union of india v. garware nylons ltd.(sc) and hindustan ferodo ltd. v. collector of central excise 1997 (89) elt 16 (sc) on the point that onus of establishing that goods are classifiable under a particular tariff entry (here as cosmetic) lies on the revenue.as regards cosmetics, mr. bajoria, the company's counsel, relied on the book--"modern cosmetics"--by e.g. thomssen, possibly to establish that boroplus cannot be treated as a cosmetic preparation. in our opinion, mr. bajoria's contentions on the method of interpretation of the entry and the onus of establishing that a product falls under a particular entry are correct.30a. it is undisputed that boroplus is a cream. in fact, it was clearly printed on the cartons of both homeopathic and ayurvedic boroplus that it was an antiseptic cream. the relevant entry regarding cosmetics under our consideration includes creams of all descriptions and varieties. but merely because it is a cream, as a natural corollary it cannot be said that it is a cosmetic. from the relevant entry as well as the common parlance meaning of a cosmetic, there will be no doubt that a cosmetic should have the qualities of beautifying, improving the appearance or promoting attractiveness of a human physique. the question, therefore, is whether by that standard and authorities below rightly came to the finding that boroplus was a cosmetic, or whether the revenue could establish that it is a cosmetic. it was contended before us by mr. bajoria for the company, that because of its antiseptic quality and because it contained boric acid, zinc oxide and few other ingredients having medicinal property, though in a very low proportion, boroplus cannot be classified as a cosmetic. in the very book relied on by mr. bajoria, cleansing creams, lubricating or emollient creams, skin protective and hand creams and foundation creams are recognised as cosmetics (see page 88). prom the claims of the company appearing from the printed cartons of boroplus, it will appear that whatever claim (as a drug) is made, it is made for the skin at various parts of the body. for instance, cracked nipples are nothing but cracked skin on a particular part of the body. similarly, minor cuts, burns and dry skin diseases also relate to skin. impetigo and intertrigo are also skin disorders. from sections iii, iv and v of the aforesaid book by e.g. thomssen it will appear that cosmetics have preventive and curative properties for the skin. from pages 410--413, 433, 480 and 481 of the book it will be seen that some cosmetics are so prepared as to contain things like zinc oxide, boric acid, benzoic acid, potassium bi-carbonate, p. hydroxide, p. chloride, and other ingredients which may be used also in drugs. on a reading of chapter 47 of the said book, commencing from page 478, it will be clear that antiseptic properties are not repugnant, foreign or anathema to a cosmetic preparation, and in fact, certain types of cosmetics are so designed as to contain some antiseptic properties. in spite of that, such preparations are classified as cosmetics and not drugs. it is clearly seen that boroplus is basically intended for beautifying the skin, improving the appearance of the skin by removing disorders, if any, and making the skin more attractive. while dealing with "modern cosmetics and relevant preparations" the new encyclopaedia britannica, vol. 17, macropaedia, 15th edn., pages 489--91, says, inter alia : ......"the fact that skin creams and similar products are normally associated with the word cosmetics reflects a change in public attitudes.................." "many specialised products are used for skin care, particularly products called tonics and freshners--dilute alcoholic lotions that contain some astringent and, specially for use by children and young adults, some germicide usually to deal with the secondary infection of acne. many products claim some skin--lightening effect, but this is only appreciable when they contain those chemicals that have a real action on the melanin (a dark brown pigment in the skin), such as hydroquinone or related chemicals." it will appear from above that some cosmetics contain germicides, astringents as well as chemicals. despite such contents, they are cosmetics. regarding use of perfume in cosmetics (homeopathic boroplus expressly declared to be perfumed ; though the ayurvedic boroplus does not expressly declare, it is clearly perfumed) the britannica says : "perfumes are used in practically every cosmetic and toiletry item.........." accordingly, it is not possible for us to differ from the findings of the authorities below that boroplus was a cosmetic preparation.consequently, it must be said that the revenue has been able to satisfactorily discharge the onus on it.31. in the result, the applications in rn-149 to 160 of 1997 are dismissed in part in so far as the orders of assessment relate to sales of boroplus. however, the said applications are allowed in part in so far as the respective orders of assessment relate to sales of products other than boroplus which were never in dispute. the impugned orders of assessment involved in the applications in rn-149 to 160 of 1997 are set aside in so far as they relate to sales of products other than boroplus. the assessing authority, respondent no. 1 is directed to make reassessment for all the relevant periods in respect of products other than boroplus, and such reassessments shall be made according to the initial assessments made in respect of those products (other than boroplus) prior to the judgment and order dated may 6, 1996 of this tribunal in rn - 11(t) of 1995. no order is made for costs.

Judgment:
1. These twelve applications under Section 8 of the West Bengal Taxation Tribunal Act; 1987 are in the nature of applications under articles 226 and 227 of the Constitution of India. The question to be decided is whether "Boroplus", a product of the applicant (henceforth referred to as "the company") is a Homeopathic medicine, an Ayurvedic drug, a drug, or a patent or proprietary medicine, or a cosmetic for the purpose of the West Bengal Sales Tax Act, 1954 ("the 1954 Act", for short). The company has raised the identical question in all these twelve applications which relate to twelve periods, being the periods of 12 months each ending respectively March 31, 1994 (RN-149), March 31, 1983 (RN-150), March 31, 1984 (RN-151), March 31, 1985 (RN-152), March 31, 1986 (RN-153), March 31, 1987 (RN-154), March 31, 1988 (RN-155), March 31, 1989 (RN-156), March 31, 1990 (RN-157), March 31, 1991 (RN-158), March 31, 1992 (RN-159) and March 31, 1993 (RN-160).

2. The company's case is that it carries on the business of, inter alia, manufacturing drugs and medicinal preparations including "Boroplus antiseptic cream" (for short, "Boroplus") for sale. Up to October 15, 1987 Boroplus was manufactured according to Homeopathic system of medicine, but since October 30, 1987 it has been manufactured according to Ayurvedic system of medicine. Reference has been made to Notification No. 1658-F.T. dated August 1, 1956 issued under Section 25 of the 1954 Act, wherein "drugs" and "patent or proprietary medicine" are included as defined in Section 3 of the Drugs and Cosmetics Act, 1940 (henceforth referred to as "the Drugs Act"). Reference is also made to definition of "medicinal preparation" in Section 2(g) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (in short, "the 1955 Act"). It is claimed that since Boroplus is a medicinal preparation containing rectified spirit, the company applied for and obtained a licence under the 1955 Act for manufacture of the Homeopathic product containing rectified spirit. The registration certificate of the company as a dealer under the 1954 Act and the Central Sales Tax Act, 1956 were amended by inclusion of "Boroplus (Homeopathic medicine)". The company took up the matter with the office of respondent No. 2, Commissioner of Commercial Taxes, who opined in a communication dated January 10, 1984 (annexure "H") that Boroplus was liable to sales tax under the 1954 Act as a drug. [It may be mentioned at this stage that the said communication bearing No. 502 C.T. dated January 10, 1984 was signed by the Public Relations Officer, Commercial Taxes]. But the Commercial Tax Officer (who has not been made a party to these applications) made assessments for the period of 12 months ending March 31, 1983 under the 1954 Act (we need not refer to assessments under the Central Sales Tax Act which are beyond this Tribunal's jurisdiction), holding that Boroplus was a cosmetic, not a drug. Prom that order of assessment, a writ application under Article 226 of the Constitution of India, being Matter No. 4884 of 1987, was filed in the High Court at Calcutta, in which an interim order dated September 16, 1987 was made, vide annexure "J", page 49. By that interim order prayers (e) and (f) of the writ application were allowed on condition that the applicant would furnish bank guarantee for Rs. 50,000 within a period of two weeks after the long vacation. Another interim order was made in the same matter on December 18, 1992 by the High Court. By the second interim order prayer (a) was allowed. It is stated in paragraph 10 of the application that prayer (a) was for staying the communication dated November 23, 1992 by Commercial Tax Officer informing the company that the Revenue was going to treat Boroplus antiseptic cream as a cosmetic, as the earlier interim order had lapsed. After this Tribunal was set up, the said writ application stood transferred to this Tribunal and was disposed of by judgment and order dated May 6, 1996 in RN-11(T) of 1995, which will be found at pages 12 to 17, annexure B to the present application. By that judgment and order dated May 6, 1996, the writ application was disposed of on consent. The assessment order of 1987 for the period of 12 months ending March 31, 1983 under the 1954 Act and also orders of assessment under the same Act for subsequent periods were quashed. Respondent No.1, Commercial Tax Officer, Shyambazar Charge, was directed to make fresh assessments under the 1954 Act in respect of Boroplus within a period of one year from the date of the judgment and for that purpose certain directions were given.

3. The further case of the company is that after the said judgment dated May 6, 1996 was passed, respondent No. 1 issued 12 communications all dated June 3, 1996 for assessments for the periods of 12 months each ending March 31, 1983 to March 31, 1994. Then the company addressed letter dated July 1, 1996 to respondent No. 1, pleading that by the judgment dated May 6, 1996 of this Tribunal only the assessments, which were completed during the continuance of the interim order of the High Court, were quashed, and not all the assessments irrespective of dates of orders of assessment. It was also submitted that the High Court's interim order expired on May 22, 1989. According to the applicant-company, during the period of operation of the High Court's interim order, namely, between September 16, 1987 and May 22, 1989 only the assessments for the periods of 12 months each ending March 31, 1983 to March 31, 1986 had been made, and the assessments for the remaining periods of 12 months each ending March 31, 1987 to March 31, 1994 were made after expiry of the High Court's interim order on May 22, 1989, and thus those orders of assessment should not be deemed to have been set aside. At the fresh proceeding before respondent No.1, the company filed various documents and evidence in support of its claims. But allegedly without application of mind respondent No. 1 arbitrarily passed order dated March 25, 1997 holding that Boroplus cannot be treated as a drug or a medicine, but should be classified as a cosmetic and it falls under the entry "cosmetics of all varieties".

Then respondent No. 1 issued 12 demand notices for the periods of 12 months each ending March 31, 1983 to March 31, 1994 under the 1954 Act, which were received by the applicant on April 8, 1997.

4. The applicant-company claims that Boroplus is a drug within the meaning of Section 3(b) of the Drugs Act and it fully satisfies the definition of "drug" in Section 3(b) under notification No. 1658-F.T.dated August 1, 1956 under the 1954 Act. The Director of Drugs Control, West Bengal was fully satisfied and hence he approved Boroplus as a drug. Composition of Boroplus was also duly approved by him. When Boroplus was manufactured by the applicant-company according to Homeopathic system of medicine, the Director of Drugs Control classified it as "ointment (Homeopathic) medicine" and when it was manufactured according to Ayurvedic system, he classified it as "ointment (Ayurvedic) medicine". There is no scope according to the company to take a different view. It is contended that Boroplus is known, treated and recognised in the medical profession as a drug or medicine. This is evident from certificates and affidavits filed before respondent No. 1. In commercial parlance also Boroplus is claimed to be regarded as such. In support of this, certificates from medical shops, clubs, social organizations and actual users were filed before respondent No. 1. On each tube and carton of Boroplus medicinal properties have been emphasised. So also in the leaflet placed inside each packet or carton. Each active ingredient used in manufacture of Boroplus is covered by authoritative books on either Ayurvedic or Homeopathic system of medicine. The company has challenged the observation of respondent No. 1 to the effect that switching over from Homeopathic system to Ayurvedic system demonstrates that the product was neither a Homeopathic medicine nor an Ayurvedic drug. It is claimed to be a medicine under both the systems. Similarly, respondent No. 1's observation is criticised that Homeopathic medicine can contain only one unmixed medicine at a time. It is stated that combination of Homeopathy medicines is permissible. In paragraph 29 of the application the company pleads that respondent No. 1 erred in holding that an Ayurvedic drug or patent or proprietary medicine must be manufactured exclusively in accordance with the formula described in authoritative books on Ayurvedic system of medicine. It is contended that the aforesaid composition holds good in respect of Ayurvedic drugs defined in Section 3(a) of the Drugs Act, or in the case of patent or proprietary medicine defined in Section 3(h) of the Drugs Act.

Allegedly, it was not claimed before respondent No. 1 that Boroplus satisfies the definition in Section 3(a) of the Drugs Act. It is claimed that the composition was arrived at the company's factory after extensive research and experiments. The company also pleads that combination of herbs is permitted in Ayurveda and the respondent was wrong in holding that Boroplus is a petroleum product, percentage of herbs being small. Expiry period of Boroplus is 5 years, but on that basis respondent No. 1 could not say that it was not a medicine.

5. A supplementary affidavit was filed by the company in which it is stated that the company had filed appeals before the Deputy Commissioner in respect of the orders of assessment, but by a consolidated order dated September 8, 1997 he dismissed all the appeals. That appellate order is now challenged. The company is questioning the findings of the Deputy Commissioner that the product is not manufactured according to the techniques of Homeopathic pharmacy and its therapeutic efficacy was not recorded in any authoritative Homeopathic literature. He held that lanolin or paraffin has not been described as Homeopathic medicine in any pharmacopoeia or Materia Medica. It is stated by the company that these are only vehicles or bases for ointments. As regards calendula, it is claimed that its use and therapeutic value under Homeopathic system of medicine is recognised by pharmacopoeia and Materia Medica. It is claimed also that boric acid and zinc oxide, which are ingredients of Boroplus help in curing and preventing impetigo and intertrigo and are recognised as such. On various other points also applicant has challenged the findings or reasonings of the Deputy Commissioner relating to manufacture according to Homeopathic system and also Ayurvedic system.

Similarly, the Deputy Commissioner's finding is challenged with regard to the composition of Boroplus as a patent or proprietary medicine within Section 3(h) of the Drugs Act. In paragraph 40 of the supplementary affidavit it is stated that the Deputy Commissioner also rejected the company's submissions regarding other medicinal products, such as antiseptic lotion, cough syrup, prickly heat powder, gold turmeric antiseptic cream, navaratna oil. The judgment of this Tribunal dated May 6, 1996 was relating to assessments of Boroplus only, but at the time of fresh assessments the Assistant Commissioner included also other products about which there was no dispute and which were not the subject-matter of the judgment dated May 6, 1996.

6. Respondents have filed an affidavit-in-opposition to the main application and another affidavit-in-opposition to the supplementary affidavit of the company. In the main affidavit-in-opposition, the case of the respondents is that appeals arising from orders of assessment in respect of 12 separate periods were disposed of by the Deputy Commissioner of Commercial Taxes, Corporate Division (the appellate authority) by an order dated September 8, 1997 which is annexed to the supplementary affidavit of the company and marked as annexure V.Boroplus was correctly classified as a cream within the meaning of cosmetic specified in Notification No. 3123-F.T. dated July 15, 1975 issued under Section 25 of the 1954 Act, and not as a drug specified in Notification No. 1658-F.T. dated August 1, 1956 issued under the same provision. Merely because the company had obtained licence from the Director of Drugs Control, West Bengal under the Drugs Act, Boroplus, which is a cream, cannot become a drug. It is not disputed by the company that Boroplus is a cream and, as such, it falls within the expression "snow and creams of all descriptions and varieties". Grant of drug licence does not conclusively prove that the licence was granted after thoroughly examining the compositions of Boroplus. It is neither a medicine nor a substance intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animals, nor Boroplus is a substance within the meaning of Section 3(b)(ii) or (iii) of the Drugs Act. In Licence No. HL-493M dated July 16, 1982 (valid up to December 31, 1983) Boroplus was shown as the company's product and was described as "Ointment Homeopathic Medicine". Some of the ingredients of Homeopathic Boroplus may be Homeopathic substances mentioned in some Homeopathic Pharmacopoeia, but other ingredients like lanolin, paraffin and rectified spirit are neither Homeopathic medicines nor substances intended to be used for or in diagnosis, treatment, mitigation or prevention of any disease or disorder in human being or animals. There is no reference of "Ointment homeopathic medicine" in any Homeopathic Pharmacopoeia. Boroplus being an ointment is not intended to be used for diagnosis of any disease or disorder, and not even used for identification of cause of any disease or disorder in human being. For using Boroplus no prescription of any particular dose for any particular disease is required. It is used as a cosmetic and it is up to the consumers as to how it would be used. Description of Boroplus of the company in the drug licence as an ointment of Homeopathic medicine does not make it a drug under Section 3(b) of the Drugs Act. The licensing authority under the Drugs Act being a creature of the statute cannot act beyond the scope of Section 3(b) of the Drugs Act.

Declaration in the drug licence that Boroplus of the company is an ointment of Homeopathic medicine is of no legal consequence for the purpose of assessment of tax under the 1954 Act. Similarly, respondents contend that mere grant of a licence by the Deputy Commissioner of Excise (Special) for use of rectified spirit as an ingredient in Boroplus does not make Boroplus, manufactured by the company, a drug within the meaning of Section 3(b) of the Drugs Act or within Notification No. 1658-F.T. dated August 1, 1956. The purpose of this licence has no nexus with levy of sales tax under the 1954 Act. The purpose of specifying any goods in the dealer's registration certificate is only to allow a manufacturing dealer to purchase inputs and packing materials at a concessional rate of tax for use thereof in the manufacture of goods specified in the registration certificate. The purpose of such specification is not to determine the class or character of the goods to be manufactured and sold. The assessing authority is legally competent to determine the character or the class of the goods. Hence, such certificate of registration is not the determining factor in deciding whether Boroplus falls under the category of drugs or cosmetics. The assessing officer is a quasi judicial authority. The opinion expressed in the latter dated January 10, 1984 issued by the Public Relations Officer, Commercial Taxes Directorate, is not binding on a quasi-judicial authority for the purpose of assessment of tax. Neither the documents filed by the company nor the drug licence dated May 21, 1987, prove that Boroplus manufactured from October 30, 1987 was an Ayurvedic drug for the purpose of levy of sales tax. Nor does the certificate dated December 11, 1987 issued by the Additional Director of Drugs Control prove that Boroplus was an Ayurvedic drug, as manufactured by the company. The drug licence was granted before commencement of manufacture of Boroplus. The statements by the manufacturer (the company) either on the packets or cartons or in the leaflets put inside the packets or cartons do not prove the true character of Boroplus. Before Boroplus can be classified as Ayurvedic drug under Section 3(a) of the Drugs Act, the company should establish that it is not only a medicine intended for the purposes stated in Section 3, but also that it is manufactured exclusively in accordance with formula given in authoritative books on Ayurvedic system of medicine, specified in the First Schedule of the Drugs Act. Ingredients used in manufacturing Boroplus are mentioned in books like "Dravyagun" and "Bharatiya Banoushadhi", but those books are not specified in the said First Schedule. Composition of Boroplus indicates that, though the ingredients may have Ayurvedic medicinal properties derived from herbs and plants, they have no therapeutic and prophylactic use, because the ingredients were not manufactured according to the formulae prescribed by the authoritative books specified in the First Schedule. Merely because some substances having medicinal property were used in Boroplus, it cannot be said that the product lost its character as a cream being a cosmetic. So also, merely because the manufacturer claims that his product is an Ayurvedic medicine, that would not make the product a medicine, if in reality and substance it is found to be not a drug or an Ayurvedic medicine within the meaning of the Drugs Act.

Consumers use Boroplus as a cream and a cosmetic and not as a medicine.

Merely because some certificates were collected by the company and produced before the assessing authority from doctors, skin specialists, etc., who expressed their views or impressions or because some of the ingredients of Boroplus have medicinal properties, it cannot be said that consumers accepted Boroplus as a drug or an Ayurvedic medicine or the product became a drug or Ayurvedic medicine within the meaning of Section 3(b) or 3(a) of the Drugs Act. These ingredients of Boroplus are different commodities for the purposes of taxation, and the manufactured product containing those ingredients is a different taxable commodity.

7. The further case of the respondents is that manufacture of Boroplus according to Homeopathic system was discontinued because of the decision of this Tribunal reported in Commissioner of Commercial Taxes, West Bengal v. West Bengal Commercial Taxes Tribunal [1993] 89 STC 355 holding that Boroline was not a drug (Boroline containing more or less the same ingredients, i.e., boric acid and zinc oxide). Switching over of manufacture from Homeopathic system to Ayurvedic system shows that Boroplus has its own name and utility independent of any system of medicine. The consumers' taste, need and purpose are in no way affected by change of some ingredients or by changing the system of medicine.

Hence, the assessing authority rightly held that Boroplus was a cream within the meaning of cosmetics. Boroplus cannot be treated as a Homeopathic or Ayurvedic medicine, if on the point of fact it is found that it is not a drug or a medicine. There are some products like soap or powder which contain medicinal ingredients to a certain extent, but for that reason have not become drugs or medicines themselves. In the commercial parlance Boroplus was not at all considered as a drug or a medicine. It is denied by the respondents that this Tribunal by its order dated May 6, 1996 in RN-11(T) of 1995 directed the assessing officer to make fresh assessments only in respect of those periods whose assessments were completed during continuance of the interim order of the High Court from September 16, 1987 to May 25, 1989, Respondents have asserted that in terms of this Tribunal's order dated May 6, 1996 the assessing officer had the authority and jurisdiction to make fresh assessments for the periods subsequent to the interim order of the High Court dated September 6, 1987. The order of this Tribunal was not confined to only the assessments made during continuance of the interim order. Unless a product is exclusively manufactured in accordance with the formula described in authoritative books on Ayurvedic system of medicine, it cannot become an Ayurvedic drug or medicine. Since February 1, 1983 Ayurvedic drugs were separately classified in Section 3(a) of the Drugs Act. Since then, Ayurvedic drugs stood excluded from "drug" defined in Section 3(b) of the Drugs Act. Boroplus was not manufactured on the basis of approved Ayurvedic formula. Hence, it is not an Ayurvedic drug or medicine. The assessing authority considered all the documents and materials produced before him by the company.

8. In the second affidavit-in-opposition with reference to the supplementary affidavit of the company, respondents' case is that the appeals were rightly and correctly disposed of by a consolidated order dated September 8, 1997 after duly considering all the documents and materials produced. The Deputy Commissioner, being the appellate authority, held that Boroplus is neither Homeopathic medicine under Rule 2(dd) nor a drug under Section 3(b) of the Drugs Act. In the certificates granted by doctors Boroplus was not certified as a drug or medicine. Boroplus is neither a drug nor a patent or proprietary medicine. Description and character of constituents of Boroplus are no determining factor for ascertaining its character as drug or medicine.

The company's own claim or advertisement will not determine character of Boroplus. A commodity which is a cosmetic or a toilet preparation does not become a drug or medicine merely because some of the ingredients have medicinal value. To become a drug or medicine, the product should be prescribed by physicians, Boroplus is not so prescribed. There is no dosage for use of Boroplus. Though boric acid or zinc oxide may be classified as drug or medicine, and though such ingredients are used in manufacture of Boroplus, Boroplus does not become a drug or medicine. Now-a-days cosmetics are so manufactured as to maintain skin or to save skin from problems or ailments, but such cosmetics do not become drugs. A medicated cream also falls under the category of cosmetics. Boroplus has no therapeutic value of its own, though some of its ingredients may have such value. In spite of that, Boroplus is a cosmetic.

9. Two affidavits-in-reply have been filed by the company in response to the two affidavits-in-opposition. Generally the averments in the main application and the supplementary affidavit have been repeated.

The statements of the respondents have been denied. It is contended that all the items covered by Notification No. 3123-F.T. are for cleansing or beautifying or promoting attractiveness of human body. The expression "creams of all descriptions and varieties" cannot be read in isolation, and should be read in the light of different items covered by the entry. There was no entry during the entire relevant period regarding medicated cosmetics, otherwise there is no scope to treat Boroplus as medicated cosmetics.

10. At the outset, two points need to be clarified. It will appear from foregoing paragraph 3 of this judgment that the applicant had taken a plea that only those assessments, which were completed during continuance of High Court's interim order, were quashed, and the rest of the assessments were not quashed. It has been also stated that assessments only for the periods of 12 months each ending March 31, 1983, March 31, 1984, March 31, 1985 and March 31, 1986 had been made during continuance of the High Court's interim order, thereby pleading that the other assessments for the subsequent periods up to March 31, 1994 had not been quashed by this Tribunal's judgment dated May 6, 1996. But at the time of arguments this contention was abandoned, and on the other hand, in paragraph 45(a) of the written notes of "Main submissions on behalf of Himani Limited" (hereinafter referred to as "Written notes"), it was conceded that by the judgment and order dated May 6, 1996 the order of assessment of 1987 for the period of 12 months ending March 31, 1983 under the 1954 Act and orders of assessment under the said Act for subsequent periods were quashed and the direction was given to make fresh assessments for these periods. The relevant part of the aforesaid paragraph 45(a) is extracted below : "The said writ petition was disposed of by this honourable Tribunal by its order dated May 6, 1996. The said order was passed on consent. By the said order, the assessment order of 1987 and for subsequent periods were quashed and the respondent No. 1 was directed to make fresh assessments under the 1954 Act ...." Ultimately, it is, therefore, undisputed that by judgment and order dated May 6, 1996 in RN-11(T) of 1995 arising out of the writ application received in this Tribunal on transfer from High Court, the order of assessment passed in 1987 for the period of 12 months ending March 31, 1983 and the orders of assessment for the subsequent periods were all quashed, and respondent No. 1 was directed to make fresh assessments not only for the period of 12 months ending March 31, 1983, but also for the periods subsequent to the interim order dated September 16, 1987 passed by High Court. This position is clear from the said judgment and order dated May 6, 1996 passed by this Tribunal.

Therefore, it cannot be said that respondent No. 1 committed any error or went beyond the mandate of the aforesaid judgment of this Tribunal dated May 6, 1996 by making fresh assessments for the periods commencing from 12 months ending March 31, 1983 to 12 months ending March 31, 1994.

11. The next contention of the learned counsel for the applicant is that the aforesaid orders of assessment were quashed and the aforesaid direction for fresh assessment was given only in respect of one product, namely, Boroplus. The contention is that fresh assessments were unwarranted for sales of other products of the company. This point was argued and also finds mention in paragraph 45(b), (c) and (d) of the written notes. The learned advocate for the respondents did not make a clear statement on this point. But upon a reading of the judgment and order of this Tribunal dated May 6, 1996 in RN-11(T) of 1995 it is clear that quashing of orders of assessment and directions for fresh assessments were all related to the turnover in respect of one product, namely, Boroplus, and no question arose (neither arises now) regarding the turnover in respect of sales of products other than Boroplus. There are several indications in the said judgment and order to this effect. Let us quote one sentence towards the end of the said judgment and order to make the position clear : "Thus, the writ application is disposed of in so far as it relates to the dispute regarding assessment of Boroplus antiseptic cream under the West Bengal Sales Tax Act, 1954." Hence, Mr. R.N. Bajoria, learned counsel for the applicant, rightly submitted that no mandate or liberty was given to respondent No. 1 (assessing authority) to make fresh assessments for all the aforesaid periods in respect of sales of products of the company other than Boroplus. That being the correct position, the fresh assessments under challenge before us cannot be sustained in respect of sales of products of the company other than Boroplus.

12. The dispute regarding the true nature of Boroplus, whether drug, Homeopathic medicine, Ayurvedic drug, patent or. proprietary medicine, or cosmetic calls for consideration of relevant notifications issued under the 1954 Act and certain provisions of the Drugs Act. By Notification No. 1206-F.T. dated March 26, 1979 rates of tax for notified commodities under 1954 Act were fixed with effect from April 1, 1979. Sl. Nos. 8, 15 and 71 of that notification are pertinent, and quoted below : "8. Cosmetics of all varieties, as specified in Notification No. 3123-F.T. dated the 15th July, 1975, as amended.

15. (ii) Drugs and patent or proprietary medicines, as defined in Notification No. 1658-F.T. dated the 1st August, 1956, as subsequently amended.

(iii) Surgical dressings as defined in Notification No. 1658-F.T. dated the 1st August, 1956.

71. Ayurvedic (including Siddha) and Unani drugs, as defined in clause (a) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940), but excluding such items of the said drugs as are covered by Notification No. 1658-F.T. dated the 1st August, 1956, as specified in Notification No. 3574-F.T. dated the 27th September, 1982." 13. As regards Sl. No. 8 of Notification No. 1206-F.T. dated March 26, 1979, the relevant part of Notification No. 3123-F.T. dated July 15, 1975 reads as under : "Cosmetics of all varieties including (i) talcum and other powders for face and skin, (ii) snow and creams of all descriptions and varieties, (iii) depilatories, (iv) blemish removers and beauty milk and cleansing milk, (v) hair dyes and hair darkeners, (vi) hair creams, (vii) hair tonic and hair lotions, (viii) hair spray, (ix) pomade, brilliantine vaseline, (x) alta, (xi) lipsticks, (xii) nail polish, (xiii) eyeliners, (xiv) eye-tex, (xv) rouge, (xvi) bindi, (xvii) after-shave lotions and creams." In the same notification hair oil, shaving instruments and tooth cleaning materials, mouthwashes and deodorants were also notified under the 1954 Act.

14. As far as Sl. No. 15 of Notification No. 1206-F.T. is concerned, reference has been made to Notification No. 1658-F.T, dated August 1, 1956, as amended. In the said Notification No. 1658-F.T. dated August 1, 1956 the items drug, patent or proprietary medicines were notified with the following descriptions : " 'Drug' as defined in clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) including dicophane (dichloro diphenyl trichloroethane), pyrethrum, renzene hexachloride dieldrin and their preparations, but excluding condoms (a contraceptive device) and chloroquine phosphate tablets." " 'Patent or proprietary medicine as defined in clause (h) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940)." 15. Sl. No. 71 of Notification No. 1206-F.T. refers to Notification No.1658-F.T. dated August 1, 1956 as also to Notification No. 3574-F.T.dated September 27, 1982. We have already seen what drugs are covered by Notification No. 1658-F.T. dated August 1, 1956. Sl. No. 71 chiefly refers to Notification No. 3574-F.T. dated September 27, 1982 for description of the item. That description is that Ayurvedic and Unani drugs including Siddha as defined in Section 3(a) of the Drugs Act are notified for taxation under the 1954 Act, but not all such drugs. Drugs which are covered by Notification No. 1658-F.T. dated August 1, 1956, which may otherwise fall within description of Ayurvedic (including Siddha) and Unani drugs, were not notified for taxation under the 1954 Act.

16. When, therefore, items 15 and 71 of Notification No. 1206-F.T.dated March 26, 1979 and Notification No. 1658-F.T. dated August 1, 1956, as amended and Notification No. 3574-F.T. dated September 27, 1982 are read together and harmoniously interpreted (which is unavoidable), it is clear that Ayurvedic drug is outside the scope and ambit of Notification No. 1658-F.T. dated August 1, 1956 and those Ayurvedic drugs which may otherwise fall within drugs and patent or proprietary medicines within Notification No. 1658-F.T. dated August 1, 1956 are not to be considered as Ayurvedic drugs for the purpose of Notification No. 3574-F.T. dated September 27, 1982. In other words, such Ayurvedic drugs were not made taxable under the 1954 Act.

17. "Cosmetic" is defined in Section 3(aa) of the Drugs Act. But it is noteworthy that by Notification No. 3123-F.T. dated July 15, 1975 definition of "cosmetic" in the Drugs Act was not referred to. But in Notification No. 1658-F.T. dated August 1, 1956 "drug" was notified on the basis of definition in Section 3(b) of the Drugs Act and several other commodities were included in the meaning of "drug" by the device of inclusive definition which is generally extensive in nature (and here it is so). Similarly, Notification No. 1658-F.T. has brought "patent or proprietary medicine" into the fold of the 1954 Act on the basis of definition in Section 3(h) of the Drugs Act. Therefore, no reference is ordinarily necessary to the definition of "cosmetic" in the Drugs Act, but necessarily reference to Section 3(b) and Section 3(h) of the Drugs Act should be made for understanding what are to be treated for the purpose of taxation under 1954 Act as "drug" and "patent or proprietary medicine". Hence, let us quote Section 3(b) and Section 3(h) of the Drugs Act : (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) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette ; (iii) all substances intended for use as components of a drug including empty gelatin capsules ; and (iv) such device intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board." (i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parenteral root and also a formula included in the authoritative books as specified in clause (a) ; (ii) in relation to any other systems of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Drugs Technical Advisory Board constituted under Section 5." 18. The claim of the company is that up to October 15, 1987 Boroplus was manufactured as a Homeopathic medicine according to the Homeopathic system, and it has been manufactured since October 30, 1987 as an Ayurvedic drug according to Ayurvedic system. On the basis of such claim, Boroplus is said to be a Homeopathic medicine during the periods of 12 months each ending March 31, 1983, March 31, 1984, March 31, 1985, March 31, 1986, March 31, 1987 as well as up to October 15, 1987 (a part of the period of 12 months ending March 31, 1988). It follows, therefore, that the company's claim during the period from October 30, 1987 till March 31, 1988, and during the periods of 12 months each ending March 31, 1989, March 31, 1990, March 31, 1991, March 31, 1992, March 31, 1993 and March 31, 1994 is that Boroplus is an Ayurvedic drug. These are the periods in dispute before us. Despite such claim in the main application, there is a further claim in the same application that Boroplus is a drug within the meaning of Section 3(b) of the Drugs Act. Moreover, in paragraph 29 of the application the company has contended that the composition of Boroplus holds good in respect of Ayurvedic drug defined in Section 3(a) of the Drugs Act and in respect of patent or proprietary medicine defined in Section 3(h) of the Drugs Act. Simultaneously the company has alleged that no claim was advanced before respondent No. 1 to the effect that Boroplus satisfies the definition in Section 3(a) of the Drugs Act. In paragraph 3 of the written notes (filed in July, 1988 after the oral arguments were over) the following statement has been made : "According to the petitioner, Boroplus was taxable under Sl. No. 15(i) of Notification No. 1206-F.T. dated March 26, 1979 read with Notification No. 1658-F.T. dated August 1, 1956 as drugs or patent or proprietary medicine." Referentially that takes us to the definitions of "drug" and "patent or proprietary medicine" in clauses (b) and (h) of Section 3 of the Drugs Act. From the impugned orders of assessment dated March 25, 1997 passed by respondent No. 1 for the periods in dispute it is clear that the assessing authority considered the materials placed and came to the finding that Boroplus was neither a Homeopathic medicine (for the period for which it is claimed to be so) nor an Ayurvedic medicine or drug (for the period during which it is claimed as such). Then he recorded a finding that it was a cosmetic and the assessment of tax proceeded accordingly. In arriving at such finding, respondent No. 1 held, inter alia, that "Homeopathic medicines are supposed to be used in single form in dilution", but Boroplus was a combination of many ingredients and the method of preparation as laid down by Dr. Hahnemann was not followed and hence it was not a Homeopathic medicine. As regards Ayurvedic drug, the assessing authority held, inter alia, that combination of herbs may be an Ayurvedic drug, if it is manufactured exclusively in accordance with formula prescribed in authoritative books, and a mere hotch-potch of herbs did not constitute an Ayurvedic drug. According to him, Ayurveda is itself a medical science and in preparation of Ayurvedic drug, the formulations prescribed in authoritative books on Ayurveda must be followed. One of his reasonings was that individual ingredients might have medicinal use, but it did not follow that such ingredient or ingredients in combination with any other herbs or ingredients would be an Ayurvedic drug. On this point he applied Section 3(a) of the Drugs Act. He also held that Boroplus contained very small percentage of herbs, major ingredients being paraffin and lanolin. Paraffin and lanolin roughly account for 37 grams in a preparation of Boroplus weighing 40 grams. Paraffin and lanolin, he observed, were not recognised ingredients of drug in Ayurveda, inasmuch as no reference to these things can be found in the authoritative books on Ayurveda produced by the applicant. The assessing authority also held that all the reports of clinical test of Boroplus produced by the company are "vague, unscientific and unreliable". He also noted that opinions of physicians and others were produced in the form of affidavits couched in identical language and content. He rejected such opinion as merely subjective, as distinct from objective. He referred to the advertisements issued by the company for Boroplus and to the common use of the product and held that even the advertisements highlighted only the emollient quality of Boroplus on skin, and it could not be established that Boroplus had efficacy on cuts and burns. The appeals preferred by the company against the orders of assessment for the several years in dispute were decided by the Deputy Commissioner of Commercial Taxes, Corporate Division, by a common order dated September 8, 1997. The appellate authority noted that the company took as many as four different pleas, (i) Boroplus is a Homeopathic medicine, (ii) it is an Ayurvedic drug, (iii) it is a drug as defined in Section 3(b) of the Drugs Act and (iv) it is a patent or proprietary medicine, as defined in Section 3(h) of the Drugs Act. He also noted that with effect from October 1, 1982 Ayurvedic drug as defined in Section 3(h) of the Drugs Act was brought under 1954 Act by Notification No. 3574-F.T. dated September 27, 1982. In Sl. No. 71 of Notification No. 1206-F.T. dated September 26, 1979, as amended, Ayurvedic drug was described in identical terms as described in the said Notification No. 3574-F.T. dated September 27, 1982 (see paragraph 12 of this judgment). Section 3(a) of the Drugs Act was during the relevant periods as under : "3. In this Act unless there is anything repugnant in the subject or context,--(a) "Ayurvedic, Siddha or Unani drug" includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule." In the said First Schedule of the Drugs Act, there is a list of authoritative books on Ayurveda numbering as many as 54 plus 2 more (54A and 54B). On that basis the Deputy Commissioner held : "It is relevant to place on record that Ayurvedic medicine remained all along defined in Section 3(a) of the Drugs and Cosmetics Act and hence it should not be included within the meaning and definition of "drug" as defined in Section 3(b) of the said Act." The history of legislation of Section 3 of the Drugs Act is that the definition of simple "drug" was there in clause (b) in the Drugs Act, though from time to time amendments have been made to it. Previously the definition of "the Board" was in clause (a) of Section 3. By Act 13 of 1964 with effect from September 15, 1964 clause (a) being the definition of Ayurvedic drug (also Siddha or Unani drug) was inserted.

At that time the old clause (a), being the definition of "the Board", was made clause (aa) of Section 3. Therefore, history of legislation shows that the general definition of "drug" was originally there, when there was no separate definition of Ayurvedic drug. Later, definition of Ayurvedic drug was given in Section 3(a). A special provision derogates from a general one ; in other words, the special provision of Ayurvedic drug has the effect that Ayurvedic drug should follow the definition in Section 3(a), and not the general definition of "drug" in Section 3(b). Therefore, in my opinion, the Deputy Commissioner, as the appellate authority, rightly held that Ayurvedic drug would not follow the definition in Section 3(b). In this connection reference may be made to the case of lshwar Singh Bindra v. State of U.P. AIR 1968 SC 1450 wherein it was held that the scheme of Section 3(b)(i) of the Drugs Act apparently was to take in all medicines or substances with the exception of such medicines or substances which are exclusively used or prepared for use in accordance with the Ayurvedic or Unani system of medicine.

19. But the said appellate authority, in my opinion, committed a mistake in holding that the definition of "patent or proprietary medicine" in Section 3(h) of the Drugs Act was not adopted by reference in any of the entries in the relevant notifications. It is to be noted that the definition of "patent or proprietary medicine" was originally in clause (d) of Section 3, but with effect from March 16, 1961, clause (d) was relettered as clause (h) which is the definition of the said expression. Sl. No. 15(i) of Notification No. 1206-F.T. dated March 26, 1979 refers to Notification No. 1658-F.T. dated August 1, 1956, as amended, in respect of drugs and patent or proprietary medicines. From Notification No. 1658-F.T. dated August 1, 1956 I find that "patent or proprietary medicine" is mentioned there as defined in Section 3(h) of the Drugs Act. That being so, it is not correct, as held by the Deputy Commissioner, that "patent or proprietary medicine should not be understood under the 1954 Act with reference to the definition in Section 3(h) of the Drugs Act." It must be held that "patent or proprietary medicine" should be understood according to the definition in Section 3(h) of the Drugs Act.

20. The appellate authority held that a Homeopathic medicine or drug is to be understood according to Rule 2(dd) of the Drugs and Cosmetics Rules, 1955 (in short, "the Drugs Rules"). He also held that Boroplus sold as Homeopathic antiseptic cream was not a Homeopathic medicine, because provings and therapeutic use thereof are not recorded in authoritative Homeopathic literature. According to him, for the same reasons the company's claim that Boroplus was a patent or proprietary medicine cannot be accepted.

21. The questions involved in these applications are mixed questions of law and fact. It has neither been argued nor shown to us that the findings of fact arrived at by respondent No. 1 and the appellate authority are either perverse or without any basis except on one point, namely, that combination of Homeopathic medicines is not permitted. We are not required to make, as it were, a fresh assessment of facts except that while examining the claims of the applicant-company vis-a-vis the findings of respondent No. 1 and the appellate authority, it may be necessary to refer to relevant documents.

22. The first claim has always been that up to October 15, 1987 Boroplus was manufactured according to Homeopathic system of medicine, hence it was a Homeopathic medicine or drug. At the hearing before us Mr. R.N. Bajoria, learned advocate appearing for the applicant-company, submitted that the claim of the applicant-company is that Boroplus, whether manufactured according to Homeopathic system or Ayurvedic system, was a drug in the general sense as defined in Section 3(b) of the Drugs Act. Thereby, he conveyed the idea to us that the company was not interested in pushing its claims that Boroplus was either a Homeopathic medicine or an Ayurvedic drug. But on a scrutiny of the orders of assessment and the combined appellate order, it will appear that all along the case of the company has been that up to October 15, 1987 Boroplus was sold as a Homeopathic medicine or drug, because it was manufactured at that time according to Homeopathic system of medicine. Similarly, all along the other claim of the company has been that since October 30, 1987 Boroplus was manufactured according to Ayurvedic system of medicine, and hence it should be treated for the purpose of taxation as an Ayurvedic drug. A drug licence under the Drugs Act is not a conclusive evidence of the fact that for the purpose of taxation under the 1954 Act the product is a drug ; it is a piece of evidence which should be considered by the assessing authority under the taxing law in course of making an assessment ; but the assessing officer should draw his own conclusion as a quasi-judicial authority and he is not bound by what is stated in a drug licence. When we examine the drug licence of Boroplus as a Homeopathic medicine, annexure E at page 21 of the application, we find that Boroplus was described as "Himani Boroplus" and the licence was initially issued for the period from July 16, 1982 to December 31, 1983. It clearly mentioned at the top that it was issued for manufacture of Homeopathic medicines for sale. In the annexed list of drugs the product is described as ointment Homeopathic medicine. The composition of a 21 gram packing is Boric Acid 5 mg, Zinc Oxide 10 mg, Berberis Aquifolium .1 ml, Calendula Officinalis .1 ml (for these four ingredients references have been made to different Homeopathic pharmacopoeia), rectified spirit .13 ml, lanolin, paraffin and perfume q.s. (for the last three ingredients no reference has been made to any authoritative book or any Homeopathic pharmacopoeia). On the carton as well as in the promotional literature it has been prominently displayed that it is a Homeopathic medicine. In this formula the proportion of boric acid is about .024 per cent w/w. In comparison, refer to P. 119 (illustration No. 1) of E.G. Thomssen's "Modern Cosmetics" where an admitted cosmetic, viz., lanolin cream contains about .294 per cent of boric acid w/w. So, mere such low presence of boric acid or any other antiseptic agent in Boroplus should not make it a drug in any sense of the term. From annexure G, Central Sales Tax Registration Certificate, it will be seen that Boroplus was mentioned as Homeopathic medicine.

The same description can be found from the State Sales Tax Registration Certificate at annexure page 30. From the orders of assessment and the appellate order in respect of the periods in dispute, it can be clearly seen that the company was pursuing its claim that up to October 15, 1987 Boroplus was manufactured and sold as a Homeopathic medicine.

Therefore, let us at first examine whether any such claim can be said to have been substantiated, or whether in this respect respondent No. 1 and the appellate authority arrived at erroneous findings, Homeopathic medicine is not defined in Section 3 of the Drugs Act. It is comprehended within the general definition of "drug" in Section 3(b) of the Drugs Act. Under Section 3(b)(i) all medicines except those which are separately defined in Section 3, are included in the expression "drug". Therefore, Homeopathic medicines are also included in the expression "drug". But under the Drugs Act, Homeopathic medicine has been defined by an inclusive definition in Rule 2(dd) of the Drugs and Cosmetics Rules, 1945 (in short, "the Drugs Rules"). The definition being inclusive in nature, it comprehends normal Homeopathic medicines as understood in common parlance (regarding which discussion later). By the inclusive part, the definition is extended to Homeopathic drug recorded in Homeopathic provings or therapeutic efficacy of which has been established and which is prepared according to Homeopathic pharmacy techniques. The inclusive part of the definition clearly states that it covers combination of ingredients of "such" Homeopathic medicines meaning thereby all Homeopathic medicines therapeutic efficacy of which has been established and which is prepared according to Homeopathic pharmacy techniques. Normal Homeopathic medicine (as known in common parlance) cannot be obviously an article which is arbitrarily or loosely or ignorantly mentioned as Homeopathic medicine.

In common parlance, Homeopathic medicine must be a medicine which is understood by sellers and buyers as Homeopathic medicine, and it is common knowledge that Homeopathic medicines are sold in Homeopathic dispensaries and those are manufactured and thereafter diluted according to principles laid down in authoritative books of Homeopathic pharmacopoeia. "Homeopathic medicine" is a technical term. Hence in common parlance it should be understood in its technical sense on the principle that the Legislature used it in that sense (Reliance Cellulose Products Ltd. v. Collector of Central Excise, Hyderabad-1 AIR 1997 SC 3414 and Akbar Badrudin Jiwani of Bombay v. Collector of Customs, Bombay AIR 1990 SC 1579). Therefore, if the applicant-company's claim that up to October 15, 1987 Boroplus was sold as Homeopathic medicine, it must be shown that either it was a normal Homeopathic medicine as understood in common parlance or technical sense (both being identical) or it came within the inclusive part of the definition in Rule 2(dd) of the Drugs Rules. Even the applicant-company itself has not claimed that Boroplus was generally sold from Homeopathic drug stores. Lanolin, paraffin and perfume by themselves cannot by any stretch of imagination be said to be Homeopathic medicines, as understood in common parlance or technical sense. In fact, being a combination of more than one ingredient, Boroplus, if at all, may claim the shield of the inclusive part of the definition in Rule 2(dd) of the Drugs Rules, because combination of ingredients is expressly mentioned in that definition. But in order to come under the definition of Rule 2(dd) a Homeopathic medicine should be a drug which is recorded in Homeopathic provings. The applicant-company has failed to prove that Homeopathic provings have recorded Himani Boroplus as a Homeopathic medicine. In order to come within the inclusive part of the definition in Rule 2(dd), the alternative route is to show that therapeutic efficacy of Boroplus has been established through long clinical experience as recorded in authoritative Homeopathic literature of India and abroad and (namely, both the conditions must be fulfilled) which is prepared according to the techniques of Homeopathic pharmacy. In spite of voluminous papers and documents filed before the assessing and appellate authorities as well as before us, there is nothing to show that Boroplus was manufactured according to Homeopathic pharmacy techniques, and therapeutic efficacy of Boroplus was recorded in authoritative Homeopathic literature of India and (not or) abroad. It may be mentioned at this stage that Part VII-A of the Drugs Rules relates to manufacture for sale of Homeopathic medicines and the drug licence issued to the company was issued under Rule 85-D, as will appear from annexure E at page 21. Rule 85-D is quoted below : "Licence for manufacture of Homeopathic medicines is a licence to manufacture potentised preparations from back potencies by pharmacies who are already licensed to sell Homeopathic medicines by retail, and shall be granted in form 25-C." The drug licence of the applicant-company is also in form 25-C. It is not necessary to enter into the question whether drug licence in form 25-C issued under Rule 85-D was appropriate for manufacture of Boroplus with the ingredients as they were. The applicant has not furnished any tube or carton of Homeopathic Boroplus for our examination. But the company has furnished photocopy of a carton and literature of Homeopathic Boroplus. From these, I find that on the carton Himani Boroplus was clearly claimed to be Homeopathic medicine and to be a protective and soothing emollient for chapped skin, cracked nipples, minor cuts, burns and dry skin diseases. It will be further seen from the literature that Boroplus was claimed to be Homeopathic ointment (not a cosmetic or a toilet preparation), a Homeopathic medicine and an antiseptic cream. In bold print it was claimed that Boroplus could give the extra goodness only nature could give. Two things emerge from these papers : (1) that applicant claims it to be a Homeopathic medicine/ointment, thereby showing that the claim that it is a drug in the general sense was not there ; and (2) that it was not claimed vide Rule 2(dd) that it was a drug recorded in Homeopathic provings, or its therapeutic efficacy had been established through long clinical experience as recorded in authoritative Homeopathic literature of India and abroad, and that it was prepared according to Homeopathic pharmacy techniques. I wish to discuss a question (not argued before us) for clearing confusion, if any. The question is : whether definition in Rule 2(dd) will come into play for consideration of a product in terms of Section 3(b) of the Drugs Act. In my opinion, Rule 2(dd) is the definition which must be followed in Rule 85-D under which drug licence was issued, because there is nothing repugnant in the subject or context. For interpreting Section 3(b) in relation to a product claimed to be a Homeopathic medicine, application of Rule 2(dd) is unavoidable and mandatory. Following Sukhdev Singh v. Bhagatram Sardar Singh RaghuvanshiDr. Prakash Chandra Tiwari v. State of Madhya Pradesh AIR 1976 MP 50 that the Drugs and Cosmetics Rules, 1945 being made under the Drugs and Cosmetics Act, have full force and effect, as if they were part and parcel of the Act itself. In the case of Dr. Gourpada Sarkar v. West Bengal Commercial Taxes Appellate and Revisional Board RN-3/97 Reported in (1999) 113 STC 474 (WBTT)(case relating to product called Arnika plus hair vitalizer and Triofer tablets) decided by this Tribunal on February 20, 1998 it was held that without provings or recognition of therapeutic efficacy in authoritative Homeopathic literature, a product cannot be treated as a Homeopathic medicine. In other words, no one can be permitted in law to claim any article as a Homeopathic medicine without Homeopathic provings or such recognised therapeutic efficacy. In fact, in common parlance or technical sense also, a Homeopathic medicine is understood to be so because its therapeutic efficacy is well-known for a long period not on the basis of rumours or gossips or even certificates, but on the basis of recordings of provings in authoritative books. As regards Boroplus, claimed to be Homeopathic medicines no such recording of proving or therapeutic efficacy has been shown. Various certificates or letters produced by the applicant regarding Homeopathic Boroplus cannot substitute authoritative books on provings or therapeutic efficacy. The assessing authority and the appellate authority did not think that those certificates and letters, etc., are dependable. After due scrutiny I find no reason to differ from their views. As regards clinical tests for drugs (about Homeopathic provings discussion later, see paragraph 22B), the standard procedure to be followed in general is laid down as under in the well-known book --"A Short Text Book of Medical Statistics" (Eleventh Edition), by Sir Austin Bradford Hill, Chapter 20 on clinical trials : " 'Therapeutics, said Sir George Pickering in his Presidential address to the section of Experimental Medicine and Therapeutics of the Royal Society of Medicine', is the branch of medicines that, by its very nature, should be experimental. For if we take a patient afflicted with a malady, and we alter his conditions of life, either by dieting him, or by putting him to bed, or by administering to him a drug, or by performing on him an operation, we are performing an experiment. And if we are scientifically minded we should record the results. Before concluding that the change for better or for worse in the patient is due to the specific treatment employed, we must ascertain whether the result can be repeated a significant number of times in similar patients, whether the result was merely due to the natural history of the disease or in other words to the lapse of time, or whether it was due to some other factor which was necessarily associated with the therapeutic measure in question. And if, as a result of these procedures we learn that the therapeutic measure employed produces a significant, though not very pronounced, improvement, we would experiment with the method, altering dosage or other detail to see if it can be improved. This would be seen the procedure to be expected of men with six years of scientific training behind them. [The reference of six years was obviously to medical graduates who spent six years to graduate.]..................... It would be difficult to put the case for the clinical trial of new (or old) remedies more cogently or more clearly...............The basic requirement of clinical trials is comparison. In their most exacting form they call for concurrent 'controls', in other words a group of patients corresponding in their characteristics to the specially treated group but not given that special treatment. The question at issue, then, is whether it is proper to withhold from any patient or treatment that might, perhaps, give him benefit..............

The problem will clearly turn in part, and after very considerably, upon what is at stake. If, for example, it be a question of treating the common cold in young adults and seeing whether the duration of "illness" can be effectively reduced, then the morality of a rigidly controlled trial would not be seriously in doubt and any other form of trial would probably be uninformative and waste of time and money. At the other extreme it might be quite impossible to withhold, even temporarily, any treatment for a disease in which life or death, or serious after-effects, were at stake." 22A. A reference in this connection may also be made to "Planning of Experiment" by D.R. Cox (Publisher : Wiley). Different kinds of comparison and randomization can be found from the said book. There is no evidence in the instant case that in the case of Homeopathic Boroplus any such clinical trials were held or, if held, what was the result. Accordingly, I must agree with the findings of the authorities below that Homeopathic Boroplus could not be treated as a Homeopathic medicine or a drug within the meaning of Section 3(b) of the Drugs Act.

22B. In Homeopathy, provings are the soul and spirit of medicines meant for application to patients. In the preface to "A Repertory of Hering's Guiding Symptoms of Our Materia Medica" by Calvin B. Knerr, M.D.(reprinted in 1935 by M. Bhattacharyya & Co., Calcutta) the author said : "As in the Guiding Symptoms, so in the Repertory, original readings, the words of the prover and the clinician are preserved to the letter, it being thought preferable to retain the most delicate shades of meaning, occasionally even different wordings of the same symptom, by taking refuge in an extra rubric or cross-reference, sooner than amalgamate, fuse or commingle in vague generalization at the sacrifice of individuality." In Boenninghausen's "Therapeutic Pocket Book for Homeopathic Physicians" 4th American Edition, by Dr. T.F. Allen, Boericke & Tafel, Philadelphia, 1925, the original preface by Boenninghausen states, inter alia : "If many symptoms are incomplete, either because the part of the body or the kind of sensation is not clearly indicated, or, what is most frequent, because the aggravations or ameliorations, according to time or circumstances, are omitted, the difficulties of correct apprehension and the judgment of the value of such symptoms for the necessities of curing are greatly increased, for the characteristic never shows itself in a single symptom, however complete it may be, since the individuality of the prover exercises an influence over the proving which easily misleads and since also secondary symptoms creep in together with alternate effects of inferior worth, and since in general the worth or worthlessness of most symptoms can be ascertained only by means of painstaking comparisons of the whole, never from the Materia Medica Pura just at the moment it is required without previous study." The significance of "painstaking comparisons" and unbiased "proving" can be appreciated from the fact that selection of the appropriate Homeopathic medicine chiefly depends on correct identification of characteristics or guiding symptoms, and that depends on unbiased proving by way of painstaking comparisons (see Dr. Kent's "Lectures on Homeopathic Philosophy", lecture XXXII, the value of symptoms). Dr.

Kent said in lecture XXVIII, under the title "The Study of Provings", of "Lectures on Homeopathic Philosophy" (Memorial Edition, 1929, published by Ehrhart & Karl) : "The best way to study a remedy is to make a proving of it. Suppose we were about to do that ; suppose this class were entering upon a proving. Each member of the class would devote, say, a week, in examining carefully all the symptoms that he or she is the victim of, or believes himself or herself to be the victim of, at the present time, and for many months back. Each student then proceeds to write down carefully all these symptoms and places them by themselves. This group of symptoms is recognised as the diseased state of that individual. A master-prover is decided upon, who will prepare for the proving a substance unknown to the class and to all the provers, known only to himself. He will begin with the first or earliest form of the drug, it may be the tincture, and potentize it to the 30th potency, putting a portion of that potency into a separate vial for each member of the class. The provers do not know what they are taking, and they are requested not to make known to each other their symptoms. When their own original symptoms appear in the proving the effect of the remedy upon any one of these chronic symptoms is simply noted, whether cured or exaggerated, or whether not interfered with ; but when the symptom occurs in its natural way, without being increased or diminished, it may be looked upon as one of the natural things of that particular prover, and hence all the natural things of the prover are eliminated..............After the master prover deals out these vials, each prover takes a single dose of the medicine and waits to see if the single dose takes effect...................(the lecture goes on about the method).................It is highly important to wait until the possible prodrome of a given remedy is surely passed.

If it is a shortacting remedy, the action will come From the above it will be seen that a Homeopathic medicine is not just something which is merely claimed to be so or which contains some Homeopathic preparations. The ultimate product must pass through rigorous provings according to methods prescribed in Homeopathic authoritative books. In the case of Boroplus, the materials relied on by the company do not show any such provings.

23. The next claim of the company has all along been that Boroplus was manufactured and sold with effect from October 30, 1987 as an Ayurvedic drug manufactured according to Ayurvedic system of medicine. At the time of hearing before us, however, arguments were so made on behalf of the company, that the claim as Ayurvedic drug was relegated to the background (not wholly abandoned perhaps) and what was emphasised and highlighted was the claim that Boroplus should be treated as "drug" in the general sense within the definition in Section 3(b) of the Drugs Act. For clarity of discussion, I am first taking up the original claim that since October 30, 1987 Boroplus was manufactured and sold as Ayurvedic drug.

24. In the foregoing paragraph 18A I have already held that since September 15, 1964 when clause (a) was inserted in Section 3 of the Drugs Act, Ayurvedic drug would go by the definition in Section 3(a) and would not be comprehended in the definition of Section 3(b), being the general definition of "drug". From the discussion in the foregoing paragraph 12 it will be seen that Ayurvedic drugs as defined in Section 3(a) of the Drugs Act were brought under the purview of the 1954 Act for the purpose of sales tax. The definition has, already been reproduced (paragraph 18A). It is also an inclusive definition. That means, Ayurvedic drugs as understood in common parlance or in technical sense are Ayurvedic drugs under Section 3(a). Moreover, the inclusive part extends to other medicines, one of the conditions attached to which is that those should be "manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule" (to the Drugs Act). So, there are those two categories of Ayurvedic drugs envisaged in Section 3(a). Next, what is Ayurvedic drug as understood in common parlance or in technical sense It is a drug prepared according to authoritative books on Ayurveda and generally sold under well-known Ayurvedic brands or names from Ayurvedic drug stores or by Ayurvedic practitioners. The moment a buyer needs to buy an Ayurvedic drug he conceives of only such Ayurvedic preparations.

Despite voluminous materials in the form of letters, certificates, reports, etc., produced by the company, it has not been established that Boroplus is known in common parlance or in technical sense as an Ayurvedic drug, or that Boroplus is considered by buyers of Ayurvedic drug as an Ayurvedic drug or it is generally sold from Ayurvedic drug stores or by Ayurvedic practitioners. Therefore, there should be no hesitation to hold that Boroplus is not an Ayurvedic drug as understood in common parlance or in technical sense, The next question is, whether Boroplus is an Ayurvedic drug according to the inclusive part of the definition in Section 3(a) of the Drugs Act. A mandatory condition for attracting the inclusive part of the definition is that the medicine must be manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule to the Drugs Act. It has neither been claimed nor shown that Boroplus was or has been manufactured since October 30, 1987 exclusively in accordance with any formula in the aforesaid books. On the other hand, the company has been only claiming that the ingredients of Ayurvedic Boroplus (as distinct from Boroplus itself) possess curative property according to books on Ayurveda. In this type of claim, there are two important aspects for consideration in terms of Section 3(a). The books on Ayurveda wherein curative property of ingredients are recorded or said to be recorded must be the books specified in the First Schedule to the Drugs Act. Even if so, the product called Boroplus which is a combination of several ingredients may or may not ultimately produce the curative effect of individual ingredients, unless tried and experimented scientifically, according to the system of Ayurveda, and found to be so. The company furnished for our consideration a tube of Ayurvedic Boroplus with its carton. The tube announces that it contains extract of calendula - 0.4 per cent, chandan - 0.1 per cent, ushir - 0.3 per cent, ghreetakumari - 0.3 per cent, tulsi - 0.8 per cent, jatamansi - 0.1 per cent, saussurealappa - 0.5 per cent, aguru -0.4 per cent, daruharidra - 0.4 per cent, jasad bhasme (zinc oxide) - 1.8 per cent, tankan amla (boric acid) - 0.8 per cent, surasar (alcohol) - 0.7 per cent, v/w and ointment vehicle q.s. This composition is given for a tube of 20 grams. Therefore, the totality of ingredients other than ointment vehicle comes to 6.6 gms. out of 20 gms. Hence, ointment vehicle itself represents 13.4 gms., being more than 200 per cent of other ingredients which are claimed to be Ayurvedic ingredients. No arguments was advanced and no document has been shown to us to the effect that the ointment vehicle is an Ayurvedic ingredient, or considered to be so in any authoritative book of Ayurveda specified in the First Schedule. Nor has it been shown to us with reference to any documents that Boroplus was manufactured according to a formula described in the books specified in the First Schedule. Rather it is clearly admitted by the company that the formula of Ayurvedic Boroplus was devised by alleged research in its own laboratory. Thus, it is undisputed that the formula of Boroplus is not to be found in any authoritative book of Ayurveda specified in the First Schedule.

Therefore, Boroplus does not come under the inclusive part of the definition in Section 3(a).

25. While discussing Homeopathic Boroplus, I have quoted from an authoritative book by Sir Bradford Hill how a drug must be given scientific and rigorous clinical trial for becoming a drug. Therapeutic efficacy or, in simple terms, curative, preventive and diagnostic property of a drug must be ascertained and established, generally in any kind of recognised system of medicine, before a product can be claimed to be a drug within the definition of Section 3(a), Section 3(b) which includes Rule 2(dd) of the Drugs Rules and also Section 3(h) of the Drugs Act. The special mode of proving in Homeopathy has also been noted. Such ascertainment or proving has neither been claimed nor shown to us in respect of the claims put forward by the company. That being so, Boroplus, as manufactured and sold with effect from October 30, 1987, cannot be said to be an Ayurvedic drug within the meaning of Section 3(a).

26. Before we proceed to examine the claim of the applicant (covering both the periods during which Boroplus was manufactured and sold as Homeopathic medicine and Ayurvedic drug) that during the entire combined period Boroplus was a "drug" within the meaning of Section 3(b) of the Drugs Act, it is to be noted that like the definition of Homeopathic medicine in Rule 2(dd) and the definition of Ayurvedic drug in Section 3{a), the definition of "drug" in Section 3(b) is an inclusive definition. Generally, in law, an inclusive definition is extensive ; it enlarges the natural or original meaning of the term defined. But cases are not very rare where apparently inclusive definitions are nothing but exhaustive definitions, that is to say, the inclusive definition is the whole of the definition. In other words, there are cases where the word "includes" in a definition must be interpreted as "means". I have examined Homeopathic and Ayurvedic Boroplus against the touch-stones of definitions in Rule 2(dd) and Section 3(a) on the basis of the general rule of interpreting the said definitions as extensive, as distinct from exhaustive. But in all the three definitions in Rule 2(dd), Section 3(a) and Section 3(b) the interpretation should be, in my opinion, that the inclusive part is really the guiding principle of the definition ; in other words, the word "includes" should be read as "means". From the context in which the definitions are to be used, it is essential to interpret the definitions that way. From another angle also, the said interpretation should be adopted by all these three definitions for a different reason, namely, a drug, Homeopathic medicine or Ayurvedic drug as understood in common parlance or in technical sense, and as defined in the inclusive part are ultimately identical, The natural, or, technical, or original (common parlance) meaning of the terms, if any, and the meaning ascribed to them in the inclusive parts of the definitions, converge and reach the same destination. As per understanding in common parlance or technical sense, a "drug" or a Homeopathic medicine or an Ayurvedic drug is only such a product which has all the effects envisaged in the inclusive parts of the definitions and which are manufactured according to the said inclusive parts. In the definition of "drug" in Section 3(b) there is no express requirement that it should be manufactured or prepared according to a particular system of medicine or according to any authoritative books or literature, as stated in Section 3(a) and Rule 2(dd). Yet an interpretation contrary to the public policy should be avoided. Public policy certainly does not approve of anybody preparing a product according to his own technique, whether scientifically acceptable or not acceptable. Therefore, even though Section 3(b) does not expressly say that a particular technique or system should be followed in manufacture of a drug, it is necessarily implied that a product in order to be a drug must be prepared or manufactured according to a scientifically accepted technique or system of medicine. It is difficult to conceive how the company can be allowed to put forward a claim that we should forget whether it is a Homeopathic medicine or an Ayurvedic drug, but accept it as a "drug" under Section 3(b). If the drug licence (not conclusive in assessment of tax) was voluntarily obtained for the respective periods as a Homeopathic medicine and as Ayurvedic drug, it is not permissible to contend that beyond Homeopathy and beyond Ayurveda, Boroplus should be accepted as a "drug" in Section 3(b). Section 3(b) of course includes a Homeopathic medicine. There is a clear contradiction in the alternative claims made by the company.

From annexure page 190, letter No. DCWB/Ayv-832/3772 dated December 11, 1987 and other documents relating to Ayurvedic Boroplus it appears that the company applied for licence as Ayurvedic drug on February 24, 1987, when the Drugs Controller (vide his letter No. DCWB/Ayv-832/1345 dated May 21, 1987) asked for discontinuation of production under the Homeopathic licence. Ultimately by the said letter dated December 11, 1987 the Additional Director of Drugs Control certified that the company was granted licence No. AI-511-5 to manufacture for sale some Ayurvedic products including Himani Boroplus anticeptic cream. The actual drug licence as an Ayurvedic product said to be issued in the year 1987 has not, however, been shown to us. It appears that at a subsequent stage the company gave a franchise for manufacture of Ayurvedic Boroplus to Kern Research Pvt. Ltd. The Ayurvedic drug licence for manufacture of Boroplus granted to the said other company for the period from March 3, 1993 to December 31, 1994 has been annexed to the supplementary affidavit as annexure VI at pages 268 and 269.

From page 269 it appears that some of the ingredients are claimed to be mentioned in various books on Ayurveda. Those ingredients represent 0.49 per cent of the product. The percentage of surasar extract (alcohol) v/w is mentioned as 0.7 per cent. The said list of ingredients also mentions preservative q.s. and further mentions (which is significant) that the product is incorporated "in stable ointment vehicle with lanoline, paraffin, odouriferous substances, etc., q.s." The said list of ingredients attached to the Ayurvedic drug licence does not claim that surasar extract, preservative or ointment vehicle are mentioned in any books on Ayurveda. But in letter No.DCWB/Ayv-832/Part/I/98 dated January 10, 1997 (which is not in the relevant drug licence form) ingredients of Boroplus are stated and therein surasar (alcohol) is said to be mentioned in several books on Ayurveda. But here also the ointment vehicle, i.e., lanoline, wax, paraffin oil and several other substances are not claimed to be so.

Thus, it is undisputed that there are some ingredients in Ayurvedic Boroplus which are not recognised or mentioned in authoritative books on Ayurveda. Such a product cannot be an Ayurvedic drug under Section 3(a) and also very clearly cannot be a "drug" under Section 3(b) in the general sense [assuming for argument's sake that Section 3(b) may be invoked], because nothing has been shown to us to the effect that recognised scientific experiments and clinical trials have been conducted on the product and the result has been found to be positive for use as a drug. Some reliance was sought to be placed on a letter of the Public Relations Officer attached to the Directorate of Commercial Taxes being Memo No. 502 CT dated January 10, 1984 in which the officer said that Boroplus is a drug within the meaning of "drug" as defined in the Drugs Act and taxable under the 1954 Act. He stated the rates of taxes for various sales. It is well-settled that letters of this kind issued by Public Relations Officer of Commercial Taxes Directorate are mere administrative letters having no statutory support. At the time of assessment a product is considered by the assessing authority in his quasi-judicial capacity. In that capacity, the assessing authority cannot allow himself to be influenced by any such purely administrative communication having no statutory support. Moreover, the company wanted to know the rate of taxes to be charged on sales, and the Public Relations Officer mentioned the rates of taxes on the basis of the claim of the company that it was a drug. Such an officer had no occasion or jurisdiction to determine whether the product was really a "drug" or not under the 1954 Act. Hence, no importance can be attached to the said letter.

27. It will bear repetition, but is necessary to once again say that the letters, certificates, reports, etc., produced by the company from various persons including medical practitioners in Homeopathy and Ayurveda do not serve any real purpose. Because they do not establish that either Boroplus is understood in common parlance or in technical sense as a drug. Homeopathic medicine or Ayurvedic drug, or that the product has been clinically tried according to scientific principles or (in Homeopathy) provings were recorded and found to be a drug. If a product does not come within the relevant definitions, any number of such documents cannot make it a "drug" for the purpose of taxation under the 1954 Act. Some arguments were made that Boroplus was prescribed by some practitioners, and that those were sold by some resellers who possessed drug licences. These circumstances do not establish that Boroplus is a "drug" of any of the three aforesaid categories. Sometimes a doctor prescribes special food for a patient.

Simply because a food has been specially prescribed, a food item does not become a drug or medicine. The primary object of a doctor is to render relief to the sufferings of his patient. He does not always restrict his prescription to those items which are strictly drugs. He may, for example, suggest that a cosmetic cream should be used for some relief. That does not mean that the cosmetic cream is a drug. To relieve pain on parts of bodies, doctors generally prescribe in suitable cases warm compress. Therefore, it cannot be said that the hot water bag or a bottle containing hot water is a drug. These are few examples to demonstrate that everything prescribed by a doctor is not necessarily a drug.

28. We should now examine the company's claim that Boroplus (namely, the Ayurvedic Boroplus) is a patent or proprietary medicine as defined in Section 3(h) of the Drugs Act. It is to be noted that the definition in Section 3(h) is not an inclusive one. It is an exhaustive definition. Patent or proprietary medicine in relation to Ayurvedic Boroplus means a formulation containing only such ingredients "mentioned in the formulae described in the authoritative books on Ayurveda.............specified in the First Schedule..................and also a formulation indicated in the authoritative books as specified in clause (a)" of Section 3.

Therefore, basically a patent or proprietary medicine is a formulation according to a formula described in the authoritative books of Ayurveda specified in the First Schedule to the Drugs Act. In other words, a patent or proprietary medicine cannot be anything other than such a formulation. The bold assertion of the company is that Ayurvedic Boroplus was formulated by it in its own laboratory. It has not been either claimed or shown that the formulation of Ayurvedic Boroplus has been described in an authoritative book on Ayurveda specified in the First Schedule. On that ground alone Boroplus shall not come under the definition in Section 3(h).

29. Apart from the specific claims within the definitions in Section 3(a), Section 3(h), Section 3(b) read with Rule 2(dd), the learned counsel for the company stressed the claim that after all, Boroplus is a "drug" within the general conception in the definition in Section 3(b). I have already dealt with that question. It may be added that therapeutic efficacy or the virtue of usefulness in diagnosis, treatment, mitigation or prevention of a disease or disorder in human beings or animals is the one single test to determine whether a formulation is a drug or not. And this is common to a drug understood in common parlance or in technical sense as well as defined in the inclusive part of the definition in Section 3(b). No distinction can be identified between the common parlance meaning or technical sense and the definition in the inclusive part. Even at the risk of repetition, I should say that without any proof of scientific clinical trials according to authoritative books on methods of clinical trials (or without provings in case of Homeopathic medicines), no claim can be entertained that Boroplus is a "drug" within the meaning of Section 3(b). Reports and certificates relied on by the company (which we need not discuss in detail) did not follow the standard methods of provings or scientific methods of clinical trials. Having devoted ray most anxious consideration to those documents, I have not been able to consider them either trustworthy or scientific. Mr. R.N. Bajoria, learned Advocate for the company relied on a decision of the High Court at Calcutta in the case of Union of India v. G.D. Pharmaceuticals Ltd. [2000] 118 STC 19 at 20 (regarding the product Boroline) dated December 5, 1996 in appeal No. 163 of 1996 arising out of C.O. No. 14000(W) of 1985, The Supreme Court of India by order dated September 15, 1997 dismissed the special leave petition preferred from the aforesaid judgment of the High Court. Mr. K.K. Saha, learned Advocate for the respondents, distinguished the aforesaid case. The case of Boroline as decided by the High Court at Calcutta in the aforesaid judgment dated December 5, 1996 related to a Central excise matter, and hence having regard to tariff entries (discussed below) it is distinguishable from the present case. The case of Boroline was different from another angle also. Boroline was not claimed as either a Homeopathic medicine or an Ayurvedic drug. Mr. Bajoria drew our attention, with reference to Boroline, to Heading No. 30.03--Medicaments (including veterinary medicaments), and subheading No. 3003.10 which reads "patent or proprietary medicaments other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homeopathic or bio-chemic" in the Central Excise Tariff. It will appear therefrom that unlike Boroline, Boroplus manufactured according to either Homeopathic system of medicine or Ayurvedic system of medicine does not fall in sub-heading No. 3003.10 of Central Excise Tariff. In this connection possibly a reference may be made for comparison to sub-heading No. 3003.31 of Central Excise Tariff which clearly lays down that a product in order to come under that sub-heading should be manufactured exclusively in accordance with formulae described in the authoritative books specified in the First Schedule to the Drugs Act or Homeopathic Pharmacopoeia of India or the United States of America or the United Kingdom or the German Homeopathic Pharmacopoeia, as the case may be, and sold under the name as specified in such books of pharmacopoeia. It is relevant to refer to the decision in State of Goa v. Leukoplast (India) Ltd. [1997] 105 STC 318 (SC) ; AIR 1997 SC 1875 in which, with reference to a case of similar nature as that of Boroplus, it was held that it was a question of fact, and medicinal content, if any, and its curative function should be found out first. I have indicated in this judgment that the method of finding but the curative function cannot vary from person to person or manufacturer to manufacturer. The method must be according to scientific authoritative books. During oral arguments, reference was made to the decision of this Tribunal in Commissioner of Commercial Taxes v. West Bengal Commercial Taxes Tribunal [1993] 89 STC 355 (regarding taxability of Boroline). Mr. R.N. Bajoria, counsel for the company, submitted that the said decision does not apply to the present case. In fact, in paragraph 46(a) at page 86 of the "written notes" submitted on behalf of the company the following submission has been made : "It is submitted that the said decision of this honourable Tribunal has got no relevance whatsoever in the instant case.........." We also think so. However, on August 26, 1998 the company filed a copy of order dated August 6, 1998 of the Supreme Court of India in the Boroline case (Civil Appeal No. 704 of 1993) along with an affidavit.

By the said order, the judgment of this Tribunal in Commissioner of Commercial Taxes v. West Bengal Commercial Taxes Tribunal [1993] 89 STC 355 was set aside on the basis of concession made by the learned Solicitor-General appearing on behalf of the respondents. Since the case of Boroline is much different from the present case, the order of the Supreme Court does not assist the applicant-company either.

30. Thus we have seen so far that none of the claims of the company, namely, that Boroplus is a Homeopathic medicine for a certain period, that it is an Ayurvedic drug for a certain period, that it is a drug in the general sense under Section 3(b) of the Drugs Act, and that it is a patent or proprietary medicine under Section 3(h) of the Drugs Act, can be accepted. The authorities below have assessed sales of Boroplus as a cosmetic. I have already pointed out that under the 1954 Act, unlike drug, cosmetic has not been notified according to definition of "cosmetic" in the Drugs Act. The relevant entry in the notification has been quoted in the foregoing paragraph 13 of this judgment. It was argued on behalf of the company that the onus of establishing that Boroplus comes within the entry of cosmetic under Notification No.3123-F.T. dated July 15, 1975 read with Notification No. 1206-F.T.dated March 26, 1979 is on the Revenue. As regards interpretation of the entry, Mr. R.N. Bajoria, learned counsel for the company, relied on Pardeep Aggarbatti v. State of Punjab [1997] 107 STC 561 (SC). In that case it was held that entries in Schedules to sales tax and excise statutes list some articles separately and some articles are grouped together ; when they are grouped together, each word in the entry draws colour from the other words therein according to the principle of noscitur a sociis. In the present case, "cosmetics of all varieties" have been grouped together with various items. Accordingly, the meaning of "cosmetics" should be drawn from a consideration of the entire entry. Although in common parlance a cosmetic is an article which is meant for beautification or promoting attractiveness of human body, several articles have been included in the relevant entry which have directly or indirectly certain qualities of mitigation or prevention of disorders in human beings. For instance, blemish removers, cleansing milk and depilatories (hair removers) are also included in the same entry. On this question it is difficult to disagree with the findings of fact arrived at by the authorities below. Although in respect of both Homeopathic and Ayurvedic Boroplus it has been claimed that it is an antiseptic cream, at the same time in respect of Homeopathic Boroplus it was stated that it was soothingly perfumed and that it was a protective and soothing emollient for chapped skin, cracked nipples, minor cuts, burns and dry skin diseases. On the carton of Ayurvedic Boroplus it is claimed that it is an antiseptic cream (which is undisputed) and is "a preventive, curative and healing Ayurvedic ointment for dry skin diseases, cuts, scratches, minor burns, wounds, cold sores, chapped skin, furuncle, impetigo and intertrigo". Mr, Bajoria, appearing for the company, relied on Union of India v. Garware Nylons Ltd.(SC) and Hindustan Ferodo Ltd. v. Collector of Central Excise 1997 (89) ELT 16 (SC) on the point that onus of establishing that goods are classifiable under a particular tariff entry (here as cosmetic) lies on the revenue.

As regards cosmetics, Mr. Bajoria, the company's counsel, relied on the book--"Modern Cosmetics"--by E.G. Thomssen, possibly to establish that Boroplus cannot be treated as a cosmetic preparation. In our opinion, Mr. Bajoria's contentions on the method of interpretation of the entry and the onus of establishing that a product falls under a particular entry are correct.

30A. It is undisputed that Boroplus is a cream. In fact, it was clearly printed on the cartons of both Homeopathic and Ayurvedic Boroplus that it was an antiseptic cream. The relevant entry regarding cosmetics under our consideration includes creams of all descriptions and varieties. But merely because it is a cream, as a natural corollary it cannot be said that it is a cosmetic. From the relevant entry as well as the common parlance meaning of a cosmetic, there will be no doubt that a cosmetic should have the qualities of beautifying, improving the appearance or promoting attractiveness of a human physique. The question, therefore, is whether by that standard and authorities below rightly came to the finding that Boroplus was a cosmetic, or whether the Revenue could establish that it is a cosmetic. It was contended before us by Mr. Bajoria for the company, that because of its antiseptic quality and because it contained boric acid, zinc oxide and few other ingredients having medicinal property, though in a very low proportion, Boroplus cannot be classified as a cosmetic. In the very book relied on by Mr. Bajoria, cleansing creams, lubricating or emollient creams, skin protective and hand creams and foundation creams are recognised as cosmetics (see page 88). Prom the claims of the company appearing from the printed cartons of Boroplus, it will appear that whatever claim (as a drug) is made, it is made for the skin at various parts of the body. For instance, cracked nipples are nothing but cracked skin on a particular part of the body. Similarly, minor cuts, burns and dry skin diseases also relate to skin. Impetigo and intertrigo are also skin disorders. From sections III, IV and V of the aforesaid book by E.G. Thomssen it will appear that cosmetics have preventive and curative properties for the skin. From pages 410--413, 433, 480 and 481 of the book it will be seen that some cosmetics are so prepared as to contain things like zinc oxide, boric acid, benzoic acid, potassium bi-carbonate, P. hydroxide, P. chloride, and other ingredients which may be used also in drugs. On a reading of chapter 47 of the said book, commencing from page 478, it will be clear that antiseptic properties are not repugnant, foreign or anathema to a cosmetic preparation, and in fact, certain types of cosmetics are so designed as to contain some antiseptic properties. In spite of that, such preparations are classified as cosmetics and not drugs. It is clearly seen that Boroplus is basically intended for beautifying the skin, improving the appearance of the skin by removing disorders, if any, and making the skin more attractive. While dealing with "modern cosmetics and relevant preparations" the New Encyclopaedia Britannica, Vol. 17, Macropaedia, 15th Edn., pages 489--91, says, inter alia : ......"The fact that skin creams and similar products are normally associated with the word cosmetics reflects a change in public attitudes.................." "Many specialised products are used for skin care, particularly products called tonics and freshners--dilute alcoholic lotions that contain some astringent and, specially for use by children and young adults, some germicide usually to deal with the secondary infection of acne. Many products claim some skin--lightening effect, but this is only appreciable when they contain those chemicals that have a real action on the melanin (a dark brown pigment in the skin), such as hydroquinone or related chemicals." It will appear from above that some cosmetics contain germicides, astringents as well as chemicals. Despite such contents, they are cosmetics. Regarding use of perfume in cosmetics (Homeopathic Boroplus expressly declared to be perfumed ; though the Ayurvedic Boroplus does not expressly declare, it is clearly perfumed) the Britannica says : "Perfumes are used in practically every cosmetic and toiletry item.........." Accordingly, it is not possible for us to differ from the findings of the authorities below that Boroplus was a cosmetic preparation.

Consequently, it must be said that the Revenue has been able to satisfactorily discharge the onus on it.

31. In the result, the applications in RN-149 to 160 of 1997 are dismissed in part in so far as the orders of assessment relate to sales of Boroplus. However, the said applications are allowed in part in so far as the respective orders of assessment relate to sales of products other than Boroplus which were never in dispute. The impugned orders of assessment involved in the applications in RN-149 to 160 of 1997 are set aside in so far as they relate to sales of products other than Boroplus. The assessing authority, respondent No. 1 is directed to make reassessment for all the relevant periods in respect of products other than Boroplus, and such reassessments shall be made according to the initial assessments made in respect of those products (other than Boroplus) prior to the judgment and order dated May 6, 1996 of this Tribunal in RN - 11(T) of 1995. No order is made for costs.