1. This Rule was obtained by the petitioner against an order of the Commissioner of Excise. West Bengal.holding that the petitioner's preparation 'Dhanantari Rasayan' was liable to be assessed at the rate of Rs. 17.50 P. per London Proof Gallon for purposes of excise duty with effect from April 1, 1957.
2. The reason, given by the learned Commissioner, is that, in view of Rule 60 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, as subsequently amended, the appellant not having adduced any proof that the preparation in question is manufactured according to the allopathic system of medicine and the Deputy Commissioner having reported that the preparation in question has not been licensed under the Drugs Act, the said preparation has to be classed as an Ayurvedic preparation and, accordingly under Rule 67, the above higher duty, in place of the lower duty of Rs. 5/- under the residuary Clause 2 (iii) of the Schedule to the Act, will be leviable.
3. The point raises a short question. The above taxing statute contains, as its charging section. Section 3, and the taxing authority has to satisfy the test for holding that it is chargeable to higher duty. The schedule to the statute [The Medicinal and Toilet Preparations (Excise Duties) Act, 1955] mentions, in the relevant item No. 1, to quote its relevant part, 'Medicinal ***preparations containing alcohol *** to which alcohol has been added; and which are capable of being consumed as ordinary alcoholic beverages' as liable to the higher duty of Rs. 17.50 P. There is no dispute that the preparation in question is a medicinal preparation. There is no dispute either that it is a medicinal preparation to which alcohol has been added. The parties, however, are not agreed on the point whether this preparation is capable of being consumed as ordinary alcoholic beverage. That aspect, therefore, has to be established before the department can assess the preparation in question to the higher duty. For establishing the same, the department relies on Rule 67 of the Rules which, to quote the relevant facts, is in these terms: 'For purpose of duty Ayurvedic preparations *** to which alcohol is added at any stage of manufacture, shall be treated as alcoholic preparations capable of being used as ordinary alcoholic beverages.' This presumption, however, will apply only when the preparation in question is an Ayurvedic preparation. There is no material on the present records to indicate that the disputed preparation is an Ayurvedic preparation and, unless this is established, the presumption under Rule 67, or, for the matter of that, the application of the higher duty under the above item 1 of the Schedule to the Act, cannot bemade. In this view, we are unable to uphold the order or decision of the Commissioner, which is the subject-matter of the present Rule, and, in our opinion, the matter requires further consideration.
4. We would, accordingly, make this Rule absolute, set aside the impugned order and send the matter back to the Commissioner for fresh and further consideration on the materials, already on record, and on such further materials as may be made available to him by the parties, in accordance with law, in the light of the observations, made In this judgment.
5. There will be no order for costs in this Rule.