ORDER M. R. JOSHI, MEMBER. - This is an appeal filed against the order, without date, passed by the Sales Tax Commissioner in the appeal filed by Shri J. P. Dixit, Medical Practitioner, Durg, against the order dated 12th July, 1948, of the Assistant Sales Tax Commissioner, Jabalpur. It appears from paragraph 5 of the order of the Sales Tax Commissioner that he has dealt with the appeal as a reference under Section 19(a) of the Sales Tax Act on the ground that Memorandum No. ST/AC/106, dated 12th July, 1948, of the Assistant Sales Tax Commissioner did not amount to an order passed against Shri Dixit. The view that it was not an order is not correct inasmuch as the memorandum in question does contain a decision of the Assistant Sales Tax Commissioner on the application dated 28th March, 1948, of the appellant for a refund. The question whether the appellant's concern was liable to registration or not was only incidentally in issue in connection with the decision regarding the refund applied for by the appellant and was not a matter specifically and independently referred for determination under Section 19 of the Act. The Sales Tax Commissioner's decision must, without doubt, be deemed to be as an appellate decision against the original order of the Assistant Sales Tax Commissioner, in spite of the fact that the Sales Tax Commissioner preferred to treat, what was obviously an appeal, as a reference under Section 19 of the Sales Tax Act. The order of the Sales Tax Commissioner, being an order passed in appeal, is final (or non-appealable) under sub-section (4) of Section 22 of the Sales Tax Act but is subject to revision by the Board of Revenue [sub-section (5) of Section 22 ibid]. This appeal is accordingly being treated as a revision application against the order of the Sales Tax Commissioner. 2. The applicant is a proprietor of a drug-store-cum-dispensary known as "Dixit Medico Surgical Hall, Durg." On 10th August, 1947, he put in an application in Form I for registration under Section 8 of the Madhya Pradesh Sales Tax Act, 1947, to the Sales Tax Officer, Durg. A certificate in Form II was accordingly issued on 28th August, 1947. The applicant paid sales tax amounting to Rs. 458-3-6 for the first quarter ending 30th September, 1947, and Rs. 292-13-0 for the second quarter ending 31st December, 1947. A certificate in Form II was accordingly issued on 28th August, 1947. The applicant paid sales tax amounting to Rs. 458-3-6 for the first quarter ending 30th September, 1947, and Rs. 292-13-0 for the second quarter ending 31st December, 1947. The total tax paid by him for these two quarters was Rs. 751-0-6. He did not pay any tax for the subsequent quarters in view of the instructions contained in Separate Revenue Department Memorandum No. 284-2228-VIII, dated 24th February, 1948, to the effect that medical practitioners dispensing medicines to their patients from their dispensaries are not "dealers" within the meaning of Section 2(c) of the Madhya Pradesh Sales Tax Act. 3. Acting on the instructions referred to above, the applicant put in an application in Form XVII to the Sales Tax Officer, Durg, on 28th March, 1948, claiming a refund of Rs. 751-0-6 already paid by him as sales tax for the first two quarters. The application was enquired into by the Sales Tax Officer and a report was submitted by him to the Assistant Sales Tax Commissioner, Jabalpur Region, (Memorandum No. ST/298, dated 5th June, 1948), explaining the facts of the case and pointing out that the registration certificate already issued was not liable to cancellation and that the claim for refund was not tenable. On receipt of this report, the Assistant Sales Tax Commissioner, Jabalpur Region, addressed Memorandum No. ST/AC/106, dated 12th July, 1948, to the Sales Tax Officer, Durg, stating that the certificate issued to the applicant was "not liable for cancellation" and that his claim for a refund could not stand. The reasons on which this decision was based will be clear from the following facts mentioned by the Assistant Commissioner of Sales Tax :- "Dr. J. P. Dixit, of Durg imports medicines from outside the province for his medical store and dispensary. During the year ending 31st March, 1947, his total sales amounted to Rs. 32,780 of which Rs. 4,338 were for patent medicines sold in packed bottles to public, Rs. 15,616 for patent medicines issued to his patients in loose under his prescriptions and the remaining amount were charges for mixture, injections, visits etc. The issue of patent medicines in loose is considerable and is in effect a sale from the medical store (or a druggist's shop) and they are not merely dispensed from his dispensary. 15,616 for patent medicines issued to his patients in loose under his prescriptions and the remaining amount were charges for mixture, injections, visits etc. The issue of patent medicines in loose is considerable and is in effect a sale from the medical store (or a druggist's shop) and they are not merely dispensed from his dispensary. He purchases patent medicines tax-free for resale as they are specified in his certificate of registration and is therefore liable to pay tax on all such sales. His certificate is not liable for cancellation and his claim for refund does not stand. For his failure to submit return you may serve him with a notice in Form XII under rule 32 and assessment done under Section 11(4) of the Act." A copy of this memorandum was forwarded to the applicant by the Sales Tax Officer with a direction to furnish a return in Form IV for the periods from 1st January, 1948, to 31st March, 1948, and 1st April, 1948, to 30th June, 1948, after crediting the sales tax for these quarters. It was also made clear to the applicant that the communication received from the Assistant Sales Tax Commissioner also disposed of his applications for a refund of the tax already paid by him. 4. Against the order dated 12th July, 1948, of the Assistant Sales Tax Commissioner, Jabalpur, the applicant filed an appeal before the Sales Tax Commissioner who held that the applicant was a "dealer" as defined in Section 2(c) of the Act and was liable for registration and had been rightly registered and asked to pay the tax. 5. The main grounds urged on behalf of the applicant are as follows :- (i) The applicant is the sole proprietor of the medical store which is his exclusive property. (ii) The dispensing of medicines from the medical store having been done according to prescriptions given by the applicant, do not amount to "sales" within the meaning of Section 2(c) of the Sales Tax Act, in the light of instructions contained in Separate Revenue Department Memorandum No. 284-2228-VIII, dated 24th February, 1948. (iii) The sale of patent medicines in packed bottles to customers other than the applicant's patients was less than Rs. 5,000. 6. (iii) The sale of patent medicines in packed bottles to customers other than the applicant's patients was less than Rs. 5,000. 6. The learned counsel on behalf of the State has, on the other hand, pointed out that instructions of Government in the Separate Revenue Department memorandum relied on by the applicant referred exclusively to medical practitioners dispensing medicines to their patients from their dispensaries. Even though prescriptions are given by the applicant in some cases, the medicines including mixtures and patent medicines are issued from the "Medico Surgical Hall" which is purely a business concern. The dispensing of medicines in such circumstances does, according to the learned counsel, amount to "sales" within the meaning of Section 2(c) of the Sales Tax Act. In this connection the learned counsel for the State has referred to the principles laid down in North Bengal Stores Ltd. v. Member, Board of Revenue, Bengal ((1946) I.L.R. (1946) 2 Cal. 425; 1 S.T.C. 157), and Rex v. Wood Green Profiteering Committee (89 L.J.R. 55). As regards the refund claimed by the applicant, the learned counsel pointed out that no refund could, under the rules, be granted unless assessment was cancelled. 7. Before dealing with the points mentioned above, it is necessary to examine the type and nature of the concern, which the applicant represents. It is clear from the figures furnished by the applicant himself in his replies dated 11th December, 1947, and 12th April, 1948, that during the year ending 31st March 1947, the total sales from his Medico Surgical Hall amounted to Rs. 32,780, out of which patent medicines in packed bottles of the value of Rs. 4,338 were sold to persons who were not the applicant's patients and patent medicines and dispensed medicines, such as throat paints, eye, nose and tooth drops, ointments etc., of the value of Rs. 15,616 were issued to patients under his prescriptions. The remaining amount of Rs. 12,826 appears to have been covered by charges for mixtures, injections, visits etc. Medicines are imported into the medical store and it is from there that they are issued to customers either in packed condition or loose and are charged for in the bills. In the application in Form I put in by the applicant on 10th August, 1947, business in the concern is described as mainly for retail distribution and partly for "manufacturing". In the application in Form I put in by the applicant on 10th August, 1947, business in the concern is described as mainly for retail distribution and partly for "manufacturing". Against side-head 8(b), patent medicines are shown as being purchased for "resale". In paragraph 2 of the application the applicant has given the names of his three brothers as his partners in business. In paragraph 4 of his application dated 7th April, 1948, the applicant has clarified that his brothers are entitled to a percentage of profit in the business and, as is clear from his letter dated 17th May, 1948, they actually receive an annual remuneration of Rs. 1,000 each for working in the concern. All these facts clearly indicate that the so-called "Medico Surgical Hall" is largely a business concern, from which medicines are sold and that it cannot be classed purely as an ordinary dispensary run by a medical practitioner, in which medicines are only prescribed and dispensed. 8. It will be clear from the facts stated above that the applicant's concern partakes of the character both of (a) a consulting room-cum-dispensary of a private medical practitioner, and (b) a drug store. While dealing with a concern of a composite character such as this, the general principle to be followed would be that in respect of (a) above, the applicant should not be in a position less favourable than that of a private practitioner dealing with his own patients and that in regard to (b), the applicant should, broadly speaking, be considered a dealer. In practice, this will mean that : (a) sales of patent medicines in packed containers whether it be to his own patients or to others must be considered as the transactions of a dealer, (b) sales of patent medicines supplied loose - after opening containers naturally - to persons other than his patients should be regarded as the transactions of a dealer, (c) sales of mixtures or patent medicines supplied loose according to the applicant's own prescriptions to his patients should not be regarded as the transactions of a dealer. (Patent medicines may be taken to include also tubes of sera, vaccines, etc.) If the criteria mentioned above are followed, it should not be difficult to separate the items, which are taxable from those which are not taxable. 9. (Patent medicines may be taken to include also tubes of sera, vaccines, etc.) If the criteria mentioned above are followed, it should not be difficult to separate the items, which are taxable from those which are not taxable. 9. The contentions (i), (ii) and (iii) of the applicant set out in paragraph 5 (ante) boil down to these :- (a) The applicant being a medical practitioner and also a sole proprietor of the concern, the dispensing of medicines from that concern does not amount to "sales" within the meaning of Section 2(c) of the Sales Tax Act, in view of the exemption extended by Government to medical practitioners in Separate Revenue Department Memorandum No. 284-2228-VIII, dated 24th February, 1948 [(i) and (ii) in paragraph 5]. (b) The sales of patent medicines [if at all they are held to be "sales" within the meaning of Section 2(c) of the Act] are far below the "taxable quantum" [(iii) in paragraph 5]. 10. In connection with (a) above, the decision in North Bengal Stores v. Member, Board of Revenue, Bengal ((1946) I.L.R. (1946) 2 Cal. 425; 1 S.T.C. 157), is relevant. In this case it is held that dealers in patent medicines and medical sundries, who are also dispensing chemists, are liable to pay sales tax and get themselves registered under the Sales Tax Act. Transactions, which are "sales" within the meaning of Section 2(c) of the Sales Tax Act in the light of the above ruling and are liable to be classified as "transactions of a dealer" as explained in paragraph 8 above, do not lose their essential character of "sales" simply because the proprietor of the concern happens to be a medical practitioner. Such sales are clearly liable to be taxed. The concession extended by Government can legitimately be claimed only in respect of transactions, which are not "transactions of a dealer" according to the criteria laid down in paragraph 8. 11. With reference to (b) in paragraph 9, the crucial section is Section 4(1), which reads as follows :- "4(1). Such sales are clearly liable to be taxed. The concession extended by Government can legitimately be claimed only in respect of transactions, which are not "transactions of a dealer" according to the criteria laid down in paragraph 8. 11. With reference to (b) in paragraph 9, the crucial section is Section 4(1), which reads as follows :- "4(1). Every dealer whose turnover during the year preceding the commencement of this Act exceeded the taxable quantum shall be liable to pay tax in accordance with the provisions of this Act.............." In view of the admitted fact that patent medicines are sold from the "Medico Surgical Hall", there is no doubt that the applicant's concern is a "dealer" within the meaning of Section 2(c) of the Act in respect of transactions which are liable to be classified as those of a dealer according to the criteria laid down in paragraph 8. The next point to be considered is whether the turnover of the concern exceeded the "taxable quantum" during the year preceding the commencement of the Act (i.e., during the year ended on 31st March, 1947). Under Section 2(i), "taxable quantum" means :- "(a) in relation to any dealer who himself manufactures or produces any goods for purposes of sale by himself, five thousand rupees; or (b) in relation to dealers not falling within clause (a), such sum or sums as may be prescribed." Under Rule 18 of the Sales Tax Rules, the taxable quantum prescribed in relation to dealers not falling within sub-clause (a) above is Rs. 5,000 for importers of goods and Rs. 25,000 for other dealers. It is clear from the facts admitted by the applicant that medicines are imported by his concern for the purposes of sale. The "taxable quantum" would, therefore, obviously be Rs. 5,000 under Section 2(i) read with Rule 18 referred to above. On the applicant's own showing, the sale of patent medicines in packed bottles during the year ending 31st March, 1947, amounted to Rs. 4,338 which falls short of the "taxable quantum" by Rs. 662. This deficit is likely to be more than made up if other transactions of sales of the value of Rs. 15,616 are carefully classified according to the principles and criteria laid down in paragraph 8 above. Pending this classification, the contention of the applicant in respect of the "taxable quantum" must be upheld. 12. 662. This deficit is likely to be more than made up if other transactions of sales of the value of Rs. 15,616 are carefully classified according to the principles and criteria laid down in paragraph 8 above. Pending this classification, the contention of the applicant in respect of the "taxable quantum" must be upheld. 12. The result is that the order of the Sales Tax Commissioner cannot be maintained. Though the applicant's concern is no doubt liable to pay sales tax on transactions, which are "sales" within the meaning of Section 2(c) of the Sales Tax Act, according to the criteria laid down in paragraph 8 above, the actual liability to pay the tax cannot be said to have been established for want of definite data regarding the "taxable quantum" prescribed by Section 4(1) of the Act. The order of the Sales Tax Commissioner is, therefore, set aside and it is directed that a fresh order should be passed, after examining the accounts of the applicant's concern in the light of the principles and criteria laid down in paragraph 8. H. S. KAMATH, PRESIDENT. - I agree. Ordered accordingly.