R.L. Gulati, J.
1. This is a statement of the case submitted by the Judge (Revisions) Sales Tax, U.P., Lucknow, under Section 11 (4) of the U.P. Sales Tax Act (hereinafter referred to as the 'Act').
2. The assessee carries on business in medicines and one of the items in which the assessee deals is tincture zingiberis, which hereinafter shall be referred to as the 'tincture'. During the assessment year 1956-57 the assessee appears to have claimed before the Sales Tax Officer that the turnover of tincture was not assessable in its hands because the assessee was neither a manufacturer nor an importer. There is no discussion on this point in the assessment order, but it appears that the Sales Tax Officer did not accept the assessee's claim and included in the taxable turnover of the assessee a sum of Rs. 40,000 as the turnover of spirit, tincture zingiberis manufactured by it. The assessment order was confirmed on appeal by the Judge (Appeals) Sales Tax. The assessee then filed a revision application and the Judge (Revisions) Sales Tax held that the tincture was a medicine. He also held that the assessee was not its manufacturer. But he upheld the assessment taking the view that since the assessee was not able to produce the purchase vouchers showing that the tincture had been purchased locally, the possibility of the assessee being the importer could not be excluded. According to him, the onus lay upon the assessee to prove that it was neither the importer nor the manufacturer. The assessee being dissatisfied applied for a reference under Section 11(1) of the Act. That application having been rejected by the Judge (Revisions), the assessee filed an application before this court under Section 11(4) of the Act and this court by its order dated 29th August, 1966, directed the Judge (Revisions) to make a reference to this court. In compliance with the direction of this court, the Judge (Revisions) has now submitted the instant reference with the following question of law :
Assuming tincture zingiberis is a medicine as upheld in the revisional judgment, whether the onus lies on the dealer-applicant to prove that this was locally purchased so as to exclude its import or the onus lies on the department to affirmatively prove that tincture zingiberis had been imported.
3. Before we proceed to answer the question we must point out that the statement of the case submitted by the Judge (Revisions) is highly unsatisfactory. There is no mention anywhere in the statement of the case, nor indeed in the orders passed by the Sales Tax Officer, the Judge (Appeals) and the Judge (Revisions) as to upon which provision of the Act the assessee based its claim and with reference to which provision the Sales Tax Authorities and the Judge (Revisions) decided the dispute. Section 3 of the Act which is the charging Section makes every sale liable to tax and there is no distinction between an assessee, who sells locally purchased goods, and an assessee who sells them after manufacture or import. It is expected the Judge (Revisions), at least when a reference is made by him to this court, to set out all the material facts and to point out the relevant provisions and the notifications relevant for the decision of the question set out in the statement of the case. This court cannot be expected to wade through the records to gather the facts and through the various statutory provisions and the mass of notifications to sort out the relevant Sections, rules and the notifications applicable to the case. We would have been justified in returning the reference unanswered, but since it is the reference at the instance of the assessee, who is likely to suffer for no fault of his, we have decided to hunt out the relevant provisions ourselves.
4. As already stated above, Section 3 is the charging Section under which sale of every commodity is taxable at all stages. The question of the kind submitted to us in this reference would not arise if Section 3 were applicable. We, however, find that Section 3-A confers power upon the State Government to declare by a notification in the Official Gazette that the turnover of certain goods shall be taxable only at such single point of sale in the series of sales and at such rate as may be specified in the notification. We find Notification No. 3504/X dated 10th May, 1956. which was issued by the State Government in exercise of its power under Section 3-A. This notification runs as under :
In exercise of the powers conferred by Section 3-A of the U.P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all the previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that with effect from May 8, 1956, the turnover in respect of medicines and pharmaceutical preparations shall not be liable to tax except-
(a) in the case of medicines and pharmaceutical preparations imported from outside Uttar Pradesh, at the point of sale by the importer, and
(b) in the case of medicines and pharmaceutical preparations manufactured in Uttar Pradesh, at the point of sale by the manufacturer ; and the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of three pies per rupee.
5. Presumably it is under this notification that the assessee lodged its claim. The tincture has been found by the revising authority to be a medicine and it is obviously covered by the notification referred to above. The effect of this notification clearly is to take medicines and pharmaceutical preparations out of the purview of Section 3 and to tax their turnover only at the point of sale by the manufacturer or the importer. All other sales would be exempt.
6. Section 3-A is an exception to Section 3 and once an article is covered by the notification issued under Section 3-A its turnover is not liable to tax except when it is sold by the manufacturer or the importer. In a situation like this the onus would clearly lie upon the department to prove that a particular sale which is sought to be assessed under the notification is a sale by the importer or by the manufacturer, unlike the position that would prevail under Section 3 where once a person is found to be a dealer, the onus would lie upon him to show that he is not liable to tax in respect of the turnover of a particular commodity. This legal position is absolutely plain and requires no further elucidation.
7. We, therefore, answer the question by saying that the onus lay upon the department to prove that the tincture had been imported by the assessee and not upon the assessee to. prove that he was not the importer.
8. As the answer is in favour of the assessee, it is entitled to its costs which we assess at Rs. 100. The fee of the learned counsel is also assessed at the same figure.