1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Sales Tax Revision Petition No.9/2009. (A.C.T.O., Special Circle-I, Jodhpur Vs. M/s Jodhpur Gases) DATE OF ORDER : May 13, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Vineet Kumar Mathur/Mr. Rishabh Sancheti for the petitioner. BY THE COURT : Instant sales tax revision petition has been filed by the Assistant Commissioner, Special Circle-I, Jodhpur against the judgment and order dated 13.05.2008 passed by the Tax Board, Ajmer in Appeal No.805/07/Jodhpur, whereby, the learned Tax Board has affirmed the judgment dated 18.12.2006 passed by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, whereby, the first appellate authority set aside the additional demand of tax/surcharge and interest for the difference amount of 4 per cent of tax which is created on the ground that as per Entry No.176 of the notification dated 22.03.2003 12% tax is leviable upon oxygen and industrial gases. 2 Earlier, in pursuance of tax assessment order dated 11.10.2006, the respondent dealer deposited tax and surcharge at the rate of 8 per cent for the year 2003 – 2004; but, later on, demand was created for the difference amount of 4% tax and surcharge and interest on the ground that as per notification issued by the Government oxygen and industrial gases fall under Entry No.176, for which, 12 per cent tax is leviable. According to facts of the case, the respondent is producing medicated oxygen gas under licence issued as per the Medicated Oxygen & Drugs Rules, 1945. Use of medicated oxygen is only for the human patients and there is no other commercial use, therefore, the respondent challenges the additional demand created by the petitioner department which is set aside by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur in the appeal filed under Section 84 of the Act of 1994. The said order was, however, further challenged by the department by way of filing appeal before the Tax Board. The Tax Board, Ajmer, while following the judgment of the Allahabad High Court, reported in 21 STC p.124, held that medicated oxygen is only used for treatment in hospitals for human patients, therefore, it is medicine, for which, 8 per cent tax is rightly levied earlier and the subsequent additional demand raised 3 by the department is illegal. Learned counsel for the petitioner vehemently argued that in view of the express entry in the Notification dated 22.03.2002, at Entry No.176, tax at the rate of 12 per cent was to be levied because on the use of the product in question it is a gas which cannot be termed as medicine or drug. Further, it is argued that when specific entry regarding tax rate has been prescribed, then, it has to be accepted in its totality. I have perused the pleadings as well as impugned judgment passed by the Deputy Commissioner (Appeals) and, so also, judgment passed by the learned Tax Board. I have also gone through the judgment reported in 21 STC 124 (All) and 53 STC 419. In my opinion, admittedly medicated oxygen is produced under the Medicated Oxygen & Drugs Rules, 1945 and use of medicated oxygen is for saving life of serious human patients in the hospitals and there is no other use of the medicated oxygen. In fact, for such medicated oxygen, under Article 21 of the Constitution of India, it is duty of the welfare State either to exempt the tax completely or charge negligible tax because medicated oxygen gas is to be used for those human patients who are in critical condition and the gas is required to save their 4 life. In this view of the matter, I am in full agreement with the view taken by the Allahabad High Court that if one commodity is used for different purposes, then, tax can be levied at different rates. But, here in this case, admittedly medicated oxygen is to be used for saving life of human patients and no other purpose or use is there with regard to medicated oxygen. Of course, where the industrial use of the oxygen gas is in question, then, liability of tax need be satisfied under Entry No.176 of the notification dated 22.03.2002. In respect of medicated oxygen, in my opinion, the Deputy Commissioner (Appeals), so also, learned Tax Board have rightly arrived at the finding that tax levied at 8% while treating the medicated oxygen as medicine/drug does not require any interference. Moreover, the said finding is based upon sound reasoning that the commodity is to be used for saving human life and it has neither any industrial or commercial use. In this case, therefore, it need be observed that at the time of deciding matter which is related to saving lives of human patients, the welfare State is further under obligation to take into consideration that unnecessary burden of tax may not be imposed upon the citizens. In this view of the matter, there is no force in this 5 revision petition. So also, no question of law is involved in the matter for consideration. Hence, this sales tax revision petition is dismissed. (Gopal Krishan Vyas) J. Ojha, a.