Judgment WANCHOO ( 1 ) THESE six petitions under Art. 32 of theconstitution raise a common point and will be dealt withtogether. The main question raised in all these petitionsis whether the State-Governments are entitled to tax thethree Ayurvedic preparations, namely Mirtasanjibani,mritasanjibani Sudha and Mritasanjibani Sura, which aremanufactured by these petitioners, under the various Exciseact in force in the respective States. Further points wereraised in the petitions as regards the validity of therestrictions imposed in the matter of the import, export,possession and sale of these three Ayurvedic preparations. But the learned counsel for the petitioners stated before usthat he was not pressing any other point except one viz. ,whether the various State-Governments could tax these threeayurvedic preparations under the various Excise Acts inforce in the States concerned. We propose therefore to dealwith this point only in the present cases. ( 2 ) THE case of the petitioners is briefly this. They carry onbusiness as manufacturers of medicinal preparationsaccording to the Ayurvedic system of medicines and among theayurvedic medicines manufactured by them are these threepreparations. These Ayurvedic preparations are manufacturedby the process of fermentation and distillation inaccordance with the Ayurvedic system of medicinefollowing the formula in standard books known as Ayurvedsangraha, Bhaisajya Ratnabali and Arka Prakash. Thesebooks, according to the petitioners, contain extracts fromall authoritative ancient Ayurvedic treatises acceptedthroughout India and are in vogue as Ayurvedicpharmacopoeias in the various States. Though the threepreparations have three different names they are in realityonly one medicine and are prepared according to a singleformula in these books. The petitioners aver that thesethree preparations are manufactured in accordance with thestandard Ayurvedic pharmacopoeias in vogue, in variousstates and are efficacious amongst others in the followingdiseases: - (a) in typhoid fever (Sannipatik Jwara)during collapsed condition; (b) in cholera; (c) in case of loss of appetite to increasepower of digestion; (d) In rheumatism, sciatica etc. , and (e) to remove weakness, impart strength andvigour and also as a general tonic andrestorative for convalescent patients. ( 3 ) BEFORE the Constitution came into force, all these threepreparations were liable to Provincial excise duty underitem 40 of List II of the Seventh Schedule to the governmentof India Act, 1935. , and (e) to remove weakness, impart strength andvigour and also as a general tonic andrestorative for convalescent patients. ( 3 ) BEFORE the Constitution came into force, all these threepreparations were liable to Provincial excise duty underitem 40 of List II of the Seventh Schedule to the governmentof India Act, 1935. The Constitution however made a changein the three legislative Lists with respect to excise andunder item 51 of List II of the Seventh Schedule the Stateshave the power to levy excise duty on alcoholic liquor forhuman consumption and on opium, Indian hemp, and othernarcotic drugs and narcotics but not including medicinal andtoilet preparations containing alcohol or any substance likeopium etc. Further, under item 84 of List I of theseventh schedule the Union has the power to impose duties ofexcise on tobacco and other goods manufactured or producedin India except (i) alcoholic liquors for human consumptionand (ii) opium, Indian hemp and other narcotic drugs andnarcotics, but including medicinal and toilet preparationscontaining alcohol or any substance like opium etc. Thusthe Constitution took away the power of the States to imposeduties of excise on medicinal and toilet preparationscontaining alcohol or any substance like opium etc and givethat power to the Union. However, Art. 277 of theconstitution provided that `any taxes, duties, cesses orfees which, immediately before the commencement of thisconstitution were being lawfully levied by the government ofany State or by any municipality or other local authority orbody for the purposes of the State, municipality, districtor other local area may, notwithstanding that those taxes,duties, cesses or fees are mentioned in the Union List,continue to be levied and to be applied to the same purposesuntil provision to the contrary is made by Parliament bylaw`. In view of this Article, the State governmentscontinued to levy excise duties on medicinal and toiletpreparations containing alcohol, opium, etc. , till 1957 asparliament bad made no law to the contrary till then. In1955, however Parliament passed the Medicinal and Toiletpreparations (Excise Duties) Act, No. 16 of 1955,hereinafter referred to as the Act) which was brought intoforce from 1/04/1957. In view of this Article, the State governmentscontinued to levy excise duties on medicinal and toiletpreparations containing alcohol, opium, etc. , till 1957 asparliament bad made no law to the contrary till then. In1955, however Parliament passed the Medicinal and Toiletpreparations (Excise Duties) Act, No. 16 of 1955,hereinafter referred to as the Act) which was brought intoforce from 1/04/1957. We are in the present caseconcerned only with medicinal preparations and a `medicinalpreparation` is defined in s. 2 (g) of the Act as including`all drugs which are a remedy or prescription prepared forinternal or external use of human beings or animals and allsubstances intended to be used for or in the treatmentmitigation or prevention of disease in human being oranimals. Section 3 provides for levy of duties of excise atthe rates specified in the Schedule, on all dutiable goodsmanufactured in India. Section 19 gives power to thecentral. government to make rules to carry out the purposeof the Act and in particular s. 19 (2) (xx) gives power tonotify in the official gazette lists of the names anddescriptions of preparations which would fall for assessmentunder any particular item of the Schedule or for regulatingtheir manufacture, transport and distribution`. Theschedule (omitting the Explanations which are immaterial forpresent purposes) prescribing the duty is in these terms :-The central government framed Rules under the Act in1956 and the administration of the Act and the Rules wasentrusted to State-Governments. A list of medicinalpreparations, which were capable of being used as ordinaryalcoholic beverages, was also published along with the Rulesand r. 65 provides that `until a standard Ayurvedicpharmacopoeia has been evolved by the central government,the pharmacopoeias that are in vogue in the various statesshall be recognised as standard Ayurvedic pharmacopoeias`. The contention of the petitioners is that these threeayurvedic preparations conform to the definition ofmedicinal preparations given in s. 2 (g) of the Act. Further, in the Schedule to the Rules, Mritasanjibani Surawas listed as a medicinal preparation in 1957. Further in1958, Mritasanjibani and Mritansanjibani Sudha were alsoadded under the head `medicinal preparations in the Scheduleto the Rules as the three are really one and the samemedicine. The Act and the Rules came into force from 1/04/1957 in accordance with the provision of a. 1 (3) of theact, which gives power to the central government to enforcethe Act on such date as it may, by notification in theofficial gazette, appoint. The Act and the Rules came into force from 1/04/1957 in accordance with the provision of a. 1 (3) of theact, which gives power to the central government to enforcethe Act on such date as it may, by notification in theofficial gazette, appoint. The petitioners case is thatthereafter they began to pay duties of excise on these threemedicines under item I inthe Schedule to the Act at the rate of Rs. 17. 50 np pergallon of the strength of London proof spirit, as thesepreparations were considered medicinal preparationscontaining alocohol which were prepared by distillation orto which alcohol was added and which capable of being usedasordinary alcoholicbeverages. This continued till August1960 when the central government purporting to act under s. 19 of the Act amended the Rules and omitted from theschedule to the Rules two of the three preparations, namely,mritasanjibani and Mritasanjibani Sudha. Further indecember, 1960, the central government again amended therules and omitted from the Schedule to the Rules the thirdpreparation (namely, Mritasanjibani Sura ). Consequently,various State governments began demanding duties of exciseon these there preparations at rates which are much higherthan the rate of Rs. 17. 50 np prescribed in the Schedule tothe Act. The contention of the petitioners is that on thecoming into force of the Act, the levy of excise duties onthese medicinal preparations fell within item 84 of List I,with the result that thereafter it is not open to State-Governments to levy duties of excise on these preparation inaccordance with the various Excise Acts in force in thestates. It is further contended that if these preparationsin fact come within the definition of `medicinalpreparation` in s. 2 (g) of the Act and are covered by theschedule to the Act, the omission of these threepreparations from the list attached to the Rules would makeno difference and would not give power to the State-Governments to tax them under the various Excise Acts inforce in the States concerned. ( 4 ) THE petitioners further say that though r. 68 of the Rulesprovides for a Standing Committee to advise the centralgovt. ( 4 ) THE petitioners further say that though r. 68 of the Rulesprovides for a Standing Committee to advise the centralgovt. on all matters connected with the technical aspects ofthe administration of theact and the Rules, and in particular, on the questionwhether (i) a particular preparation is entitled to betreated, or to continue to be treated, as a genuinemedicinal or toilet preparation for the purposes of the Act,and (ii) if so, whether it should be treated, or continue tobe treated, as a restricted or an unrestricted preparations,it was not open to the said Committee even if it wasconsulted in this matter to advise the government that thesethree preparations were not medicinal preparations, if infact they are medicinal preparations as defined in s. 2 (g ). It is therefore urged that even if the central governmentacted on the advice of the Standing Committee when itomitted these three preparations from the list appended tothe Rules, it had no power to do so if these three prepara-tions are in fact medicinal preparations within the meaningof s. 2 (g) of the Act. The petitioners therefore pray foran appropriate writ, direction or order directing thecentral government not to give effect to the notificationsof August and December 1960, removing these threepreparations from the list appended to the Rules and alsofor a direction to the State-Governments not to levy duty onthese preparations under the respective Excise Acts in forcein the various States and prohibiting the State-Governmentsfrom collecting duties of excise on the said medicinalpreparations in excess of the rates fixed by the Act and torefund the amounts of duty already collected in excess ofthat rate. ( 5 ) THE petitions have been opposed by the central governmentand by the various State-Governments concerned. The maincounter-affidavit has been filed on behalf of the centralgovernment and the various State governments have adoptedthat counter-affidavit with some additions. The maincontention on behalf of the respondents is that these threepreparations are not admitted to be `medicinal preparationscontaining alcohol` withinentry 84 of List I, by reason of these preparations notbeing mentioned in any recognised Ayurvedic Pharmacopoeia. It is also not admitted that they are prepared according tothe prescribed specifications referred to by the petitionersby utilising the proper ingredients and manufacturedaccording to the recipes or directions given in the threeayurvedic text books relied upon by the petitioners. It is also not admitted that they are prepared according tothe prescribed specifications referred to by the petitionersby utilising the proper ingredients and manufacturedaccording to the recipes or directions given in the threeayurvedic text books relied upon by the petitioners. Farther, it is denied that these three preparations conformto the definition of s. 2 (g) of the Act. It is also notadmitted that they are remedies, muchness efficaciousremedies for any human ailment. It is further urged thatthe central Government has been empowered to decide on theadvice of the Standing Committee whether any preparationshould be treated or continue to be treated as a genuinemedicinal and toilet preparation for the purpose of the Actor whether it should be treated or continue to be treated asa restricted or unrestricted preparation. Further, thecentral government can according to the advice of thestanding Committee, amend the Schedule of the medicinal andtoilet preparations of restricted category from time to timeby notifications and if a particular preparation is found tofall out-side the scope of the Act the State-Governmentswould be competent to levy duties of excise on it under theexcise Acts in force in the various States. It is contendedthat the action of the central government in omitting thesethere preparations from the list to the Rules framed underthe Act was based on the advice of the Standing Committeewhich was of the opinion that these were not genuinemedicinal preparations. Consequently, they were omittedfrom the list appended to the Rules under the Act and theact did not apply to them with the result that the Stategovernments were free to subject them to duties of exciseunder the various Excise Acts in force in the variousstates. ( 6 ) THE main question therefore falls for consideration in thesecases is whether the three preparations are in factmedicinal preparations containing alcohol falling withinitem 84 List I of the Seventh Schedule to the Constitution,on which item the Act is based and so whether they aremedicinal preparations as defined in s. 2 (g) of the Act. If they are medicinal preparations as defined therein, theywill be governed by the Act and the omission of thesepreparations from the list appended to the Rules will notmake any difference to their being medicinal preparationswithin the meaning of the Act. If they are medicinal preparations as defined therein, theywill be governed by the Act and the omission of thesepreparations from the list appended to the Rules will notmake any difference to their being medicinal preparationswithin the meaning of the Act. Before however we deal withthis main question, we may dispose of a contention raised onbehalf of the State of Bihar that even if the threepreparations are medicinal preparations they will be liableto duty both under the Act as well as under the variousexcise Acts in force in the various States. We have alreadypointed out that under the government of India Act, 1935,medicinal and toilet preparations were liable to duties ofexcise under entry 40 of List II of the Seventh Schedule tothat Act. Correspondingly under item 45 of List I ibidwhich provides for duties of excise on tobacco and othergoods manufactured or produced in India, medicinal andtoilet preparations were excepted from that entry. Therefore, till the Constitution came into force the State-Governments had power to levy duties of excise on medicinaland toilet preparations. We have further pointed out thatthe Constitution has made a change, and medicinal and toiletpreparations were excepted from entry 51 of List II of theseventh Schedule to the Constitution relating to duties ofexcise leviable by States and were put in entry 84 of Listi` ibid which provides for duties of excise leviable by theunion. However Art. 277 provides that any taxes or dutiesetc. which, immediately before the commencementof the Constitution, were being lawfully levied by thegovernment of any State etc. may, notwithstanding that thosetaxes, duties etc. are mentioned in the Union List, continueto be levied and to be applied to the same purpose untilprovision to the contrary is made by Parliament by law. Therefore, so long as Parliament did not make any lawrelating to medicinal and toilet preparations, the positionunder the government of India Act would continue and thestates would, have the power to continue levying duties ofexcise on medicinal and toilet preparations to the sameextent to which they were levying them immediately beforethe commencement of the Constitution. In 1955, Parliamentpassed the Act for levy of duties of excise on medicinal andtoilet preparations. This Act was brought into force from 1/04/1957, and the consequence of this enactment wasthat the power of the States to heavy duties any further onmedicinal and toilet preparations came to an end in view ofart. 277 of the Constitution. In 1955, Parliamentpassed the Act for levy of duties of excise on medicinal andtoilet preparations. This Act was brought into force from 1/04/1957, and the consequence of this enactment wasthat the power of the States to heavy duties any further onmedicinal and toilet preparations came to an end in view ofart. 277 of the Constitution. There can in our opinion beno doubt that Art. 277 which saved the power of the Statesto levy duties of excise etc. which came in the Union Liston the passing of the Constitution is no longer applicableas soon as Parliament makes a provision to the contrary. Once therefore a provision to the contrary is made, thesaving provided in Art. 277 comes to an end and thereafterthe State-Governments cannot continue to levy any duty whichthey might have been levying by virtue of Art. 277 tillprovision to the contrary was made. Further, thisconclusion which follows from Art. 277 is made perfectlyclear by s. 21 of the Act, which provides that `ifimmediately before the commencement of the Act there is inforce in any State any law corresponding to this Act, thatlaw is hereby repealed`. The effect of this repeal is thatthe Excise Acts of the various States under which duty wasbeing levied on medicinal and toiletpreparations containing alcohol must be deemed to have beenrepealed, in so far as they apply to such medicinal andtoilet preparations. It is not necessary that the Stateshould have had a separate law, for levy of duties of exciseon medicinal and toilet preparations, for the repeal in s. 21 of the Act to come into effect. The Excise Acts of thevarious States were undoubtedly law under which duty wasbeing levied on medicinal and toilet preparations containingalcohol and those Excise Acts must be deemed to correspondto the Act for the purposes of levy of duty on medicinal andtoilet preparations and must be held to have been repealedby s. 21 so. far as medicinal and toilet preparations wereconcerned. It is urged on behalf of the State of Bihar thatthe purpose of the Excise Acts in States was not merely toraise revenue which was a secondary consideration but toregulate the consumption of liquor and for that purpose thevarious Excise Act of the States imposed a heavy duty toreduce Consumption. far as medicinal and toilet preparations wereconcerned. It is urged on behalf of the State of Bihar thatthe purpose of the Excise Acts in States was not merely toraise revenue which was a secondary consideration but toregulate the consumption of liquor and for that purpose thevarious Excise Act of the States imposed a heavy duty toreduce Consumption. Further, it is urged that the purposeof the Act is only to impose duties for revenue purposes andit has nothing to do with the regulation of consumption ofliquor and reducing such consumption. Therefore, the exciseacts of the various States when they impose duty of exciseon medicinal and toilet preparations had two purposes,namely, (i) to raise revenue and (ii) to reduce consumptionof liquor, and therefore the Excise Acts of the variousstates cannot be said to be corresponding law which hasbeen. repealed by the Act which has only one purpose namelyraising of revenue. We have not however been able to under. stand how any purpose behind a fiscal measure can have anyrelevance on the question of correspondence. Various Exciseacts of the States in so far as they impose duties onmedicinal and toilet preparations containing alcohol arefiscal statutes far taxing these preparations. Now, the Actis a fiscal statute for taxing these preparations enacted byparliament under entry 84 of List I of the Seventh Scheduleto the Constitution, and therefore the Excise Acts whichwere the corresponding taxing Statutes for thesepreparations must be held to be repealed so far as taxationon these preparations is concerned. There can therefore beno doubt that there is correspondence between the Act andthe various Excise Acts of the various States in so far aslevy of duty on medicinal and toilet preparations isconcerned and s. 21 of the Act repeals all the Excise Actsof the States so far as such levy is concerned. There canthus be no question of medicinal and toilet preparationsbeing liable to duty under the Act as well as the variousexcise Acts in force in the States. This contention ishereby rejected. ( 7 ) THE next question is whether these three preparations aremedicinal preparations as defined in the Act in s. 2 (g ). The definition is an inclusive one and includes `all drugswhich are a remedy or prescription prepared for internal orexternal use of human beings or animals and all substancesintended to be used for or in the treatment, mitigation orprevention of disease in human beings or animals`. The definition is an inclusive one and includes `all drugswhich are a remedy or prescription prepared for internal orexternal use of human beings or animals and all substancesintended to be used for or in the treatment, mitigation orprevention of disease in human beings or animals`. According to the West Bengal Excise Rules, which deal withthe manufacture of these three preparations it appears thatthe preparations are to be made according to the recipe anddirection laid down in Arka Prakash, Ayurved Sangraha, andbhaisajya Ratnabali, and have to be manufactured only inbond by a qualified Kabiraj or by a Kabiraji firm having aqualified Kabiraj for supervision of the manufacturingoperations. Further, the alcoholic content of thepreparations must be below 42 per centum. According to therecipe found in these Ayurvedic books, the basicingredient out of which these preparations are manufacturedis gur; besides gur there are 42 other ingredients whichhave to be mixed. These ingredients are medicinal drugsaccording to Ayurveda. In addition to these ingredients,water is also mixed and the whole mixture is kept sealed for20 days, presumably for the purpose of fermentation andthereafter the preparation is obtained by distillation andas already stated contains about 42 per centum of alcohol. Further, according to these books, the preparation is usedas a tonic to build body and physique, to increase strengthand appetite and to make appearance healthy and bright. Itis also used in Sannipat Jwara (typhoid fever) in criticalstages. It is also prescribed for cholera in frequent dosesand finally is used in all conditions of collapse. Thecounter-affidavits filed on behalf of the Union and thestates which are opposing these petitions do not definitelystate that these preparations are not medicinalpreparations. For example, in the affidavit of the State ofwest Bengal, it is stated that it is not admitted that thesepreparations are exclusively for medicinal purposes. It isalso stated that these alcoholic preparations are capable ofbeing used as ordinary alcoholic beverages. Similarly, inthe affidavit of the Union, it is stated that it is notadmitted that the preparations are efficacious remedies forany human ailment. On the other band, a number ofaffidavits have been filed on behalf of the petitioners fromregistered Kabirajas to show that these preparations aremanufactured according to the three Ayurvedic books alreadymentioned and are used for certain diseases includingcholera. Similarly, inthe affidavit of the Union, it is stated that it is notadmitted that the preparations are efficacious remedies forany human ailment. On the other band, a number ofaffidavits have been filed on behalf of the petitioners fromregistered Kabirajas to show that these preparations aremanufactured according to the three Ayurvedic books alreadymentioned and are used for certain diseases includingcholera. The respondents, however, rely on the advice ofthe Standing Committee consisting of the Drugs Controller ofthe government of India and the Chief Chemist, centralrevenues Control Laboratory, which was of opinion afterexamining the formulae and theanalytical data and the claims given on the label of thepreparations and also after carrying out tasting test, thatthese three preparations should be considered straightforward beverages and not as medicinal preparations. It wasin consequence of this decision that these threepreparations were taken out of the list attached to therules framed under the Act. The two members of the Standingcommittee do not appear to be experts in Ayurvedic medicinesand no affidavit has been filed of any ayurvedic expert onbehalf of the respondents. There seems no reason thereforenot to accept the affidavits filed on behalf of thepetitioners from qualified Ayurvedic practitioners: series Fto F 16. These Ayurvedic practitioners are not connectedwith the petitioners and what they say in their affidavitsis in accordance with the use to which these preparationscan be put as medicines according to the three Ayurvedictext books already referred to. In these circumstances itwould in our opinion be impossible to say that thesepreparations are not remedies prepared for internal use ofhuman beings and are not intended to be used for or in thetreatment, mitigation or prevention of disease in humanbeings. If therefore they are a remedy prepared forinternal use of human beings and are intended to be used foror in the treatment, mitigation and prevention of disease inhuman beings, they would clearly be medicinal preparationswithin the meaning of a. 2 (g) of the Act; and if so, theywould be liable to be taxed under the Schedule to the Actand not under the various Excise Acts of the differentstates concerned. It is only necessary to add that thedefinition of `medicinal preparation` contained in a. 2 (g)of the Act, does not depart from the meaning of thatexpression when it occurs in item 84 of List I, and hence onthe Act coming into force, the States lost the power to levyexcise duty on these preparations. It is only necessary to add that thedefinition of `medicinal preparation` contained in a. 2 (g)of the Act, does not depart from the meaning of thatexpression when it occurs in item 84 of List I, and hence onthe Act coming into force, the States lost the power to levyexcise duty on these preparations. ( 8 ) WE may in this connection refer to the counter-affidavitfiled on behalf of the State of Uttar Pradesh, where it hasbeen stated that on the basis of the formulae alleged by thepetitioners in the Schedules, no standard medicinalpreparation can be prepared as the mode of preparation con-travenes all settled laws of biochemistry. This has beensworn by an Excise Inspector of the Excise and Intelligencebureau of the State of Uttar Pradesh. It is not clearhowever from the counter affidavit what qualifications thedeponent, has to make such a statement, nor are we able tounderstand which laws of biochemistry are contravened by themode of preparation prescribed in the three Ayurvedic textbooks already referred to. As against this, we may refer. to the report of the Chopra Committee on Indigenous Drugs ofindia. In para. 265, the Committee says that in differentparts of India, as many as 900 indigenous drugs (vegetable,mineral and metallic) and over 1000 preparations made fromthese drugs are used by the Ayurvedic physicians, and `thereseems to be little doubt that out of the large number ofdrugs used by the Hindu physicians for centuries past andstill in use, there are some that deserve the reputationthey have earned as cures`. In para. 266, the Committeepoints out the difficulties in the way of assessment of theproper value of indigenous drugs. These difficulties are oftwo kinds; firstly, the modern scientists are not acquaintedwith the exact connotation of terms of Indian pharmacology,and secondly, whereas western medicine tries to explain theaction of a drug in terms of its chemical components, suchas alkaloids, glucosides, essential oils, antibiotics,hormones etc. , Indian medicine takes into account the actionof the drug in its entirety, as they hold that the action ofthe whole drug is often different from that of any one ofits constituents considered separately. The Committeefurther says that there is a good deal of truth in thisassertion. In Para. 268, dealing with compound preparations,the Committee mentions another difficulty that usuallyconfronts pharmacologists in the problem of investigatingthe value of compound medicines which are more frequentlyused than single drugs. The Committeefurther says that there is a good deal of truth in thisassertion. In Para. 268, dealing with compound preparations,the Committee mentions another difficulty that usuallyconfronts pharmacologists in the problem of investigatingthe value of compound medicines which are more frequentlyused than single drugs. It further points out that `theinvestigation of the pharmacological properties andtherapeutic value is considered to be more in the,particular combination than that of any one of the drugstaken separately. They therefore urge on the need for aninvestigation into he combination as a whole. But, for this,no modern methods are as yet available. ( 9 ) THESE observations of the Chopra Committee will showthat the claim made in the counter-affidavit filed on behalfof the State of Uttar Pradesh based on the so-called settledlaws of biochemistry cannot be accepted--at any rate withrespect to compound preparations like the three underconsideration, for the research on Ayurvedic medicines hasbeen so far very little. Reference may also be made to thereport of a Committee known as Udupa Committee with respectto the Ayurvedic system of medicines. At p. 132, thecommittee observes, on the question of the enactment of adrugs Act for Indian medicines that the central governmentdo not have any technical person who has detailed knowledgeayurvedic drugs, though there are a large number ofayurvedic scholars on the pharmacy side whose help can betaken in drafting the necessary bill. In this connection,the Committee suggested that ail adviser on Ayurvedic drugsshould be appointed for this purpose immediately, who shouldhave under him an Ayurvedic Drugs Advisory Committee, andthis will facilitate the drafting of the legislation thecommittee had in mind and also help the government to decidedisputed points about Ayurvedic drugs and medicines whichwere now cropping up frequently. This Committee wasconstituted in July, 1958, and it does not appear that anyaction on the lines suggested by the Committee was taken bythe government of India. In these circumstances we have onthe one side the three standard Ayurvedic text booksaccording to which these preparations are prepared; we havealso the affidavits of a large number of Ayurvedicpractitioners of obvious repute to the effect that thesepreparations are medicinal preparations which are used toalleviate human suffering in certain conditions. On theother hand, there is no affidavit from an Ayurvedic experton behalf of the respondents. We may however in thisconnection refer to an affidavit of the Assistant Chemicalexaminer to the government of West Bengal who is experiencedin examining and analyzing alcoholic liquors. On theother hand, there is no affidavit from an Ayurvedic experton behalf of the respondents. We may however in thisconnection refer to an affidavit of the Assistant Chemicalexaminer to the government of West Bengal who is experiencedin examining and analyzing alcoholic liquors. According tohim, the chief basis of these three preparations is molassesand gur, which is a fact as we have already pointed out fromthe recipe in the Ayurvedic text books. He further saysthat in these three preparations there are several steamvolatile products, namely, furfural, aldohydes, ketones andacids but the presence of the same does not destroy orminimise the effect of alcoholic intoxication of thesepreparations. He further says that the taste or smell ofthese preparations does not make them unfit for drinking ina large dose and they can be used as an alcoholic beverage. Even this affidavit does not say that these are notmedicinal preparations. All that it says is that thesepreparations contain about 42 per centum of alcohol and canbe used as ordinary alcoholic beverages. So if thesepreparations are medicinal preparations but are also capableof being used as ordinary alcoholic beverages, they willfall tinder the Act and will be liable to duty under itemno. I of the Schedule at the rate of Rs. 17. 50 np pergallon of the strength of London proof spirit. On aconsideration of the material that has been placed beforeus,therefore, the only conclusion to which we can come is thatthese preparations are medicinal preparations according tothe standard Ayurvedic text books referred to already,though they are also capable of being used as ordinaryalcoholic beverages. They will therefore clearly fallwithin the definition of `medicinal preparation` and wouldbe liable to duty under item I of the Schedule to the Act. So far as the decision of the Standing Committee isconcerned which resulted in the omission of these threepreparations from the list attached to the Rules, that isnot conclusive on the question whether these are medicinalpreparations or not. Further the fact that thesepreparations are omitted from the list attached to the Ruleswould make no difference to their being medicinalpreparations within the meaning of the Act, liable to dutyunder item I of the Schedule, if they are in fact medicinalpreparations as we hold them to be. Further the fact that thesepreparations are omitted from the list attached to the Ruleswould make no difference to their being medicinalpreparations within the meaning of the Act, liable to dutyunder item I of the Schedule, if they are in fact medicinalpreparations as we hold them to be. They will therefore beliable to duty under item 1 of the Schedule to the Act asthey undoubtedly fall under that item and are capable ofbeing consumed as ordinary alcoholic beverages They cannothowever be taxed under the various Excise Acts in force inthe concerned States in view of their being medicinalpreparations which are governed by the Act. ( 10 ) LASTLY, it was urged on behalf of the respondents, thatthese preparations are Dot prepared according to theformulae in the, Ayurvedic text books referred to above. That is a question of fact which it is not possible for usto decide on the materials placed before us. The avermentin this connection on behalf of the respondents is also notcategorical; for example, it has been stated on behalf ofthe Union of India, that it is not admitted that thesepreparations are prepared according to the, specificationsby utilising the proper ingredients and are manufacturedaccording to the recipe and direction given in theayurvedic textbooks referred to above. Nothing has been brought on therecord to show that these preparations were analysed and theanalysis showed that-the ingredients mentioned in theayurvedic text books were not present in the preparations. Besides, as it appears from the West Bengal Rules (ref Westbengal Excise Compilation, Pt. 2) which we have quotedabove, these preparations are prepared in bond and there arevarious restrictions before the issue of the preparations bythe manufacturer. Nothing has been said to show that thesepreparations are not in fact made in accordance with thedirection contained in the Ayurvedic, textbooks. If thiswas not so, the excise staff would be there to check theirpreparation. As a matter of fact the first rule withrespect to the manufacture of these preparations in the Westbengal Excise Compilation lays down that they will beprepared according to the recipe and direction in Arkaprakash, Ayurved Sangraha and Bhaisajya-Ratnabali; and ifthat rule is being disobeyed we should have expected someone to swear that though the rule says that the preparationsshould be made according to the directions in these textbooks, they are in fact not so made. Further if the rule isbeing contravened there must be power in the State-Government to take action against those who contravene tilerule. But nothing has been brought to out, notice to showthat any action has been taken. In these circumstances weare not prepared to hold that these preparations are notprepared according to the Ayurvedic text books; and in anycase our decision holding these three preparations asmedicinal preparations is based on these preparations beingmade in accordance with the directions contained in theayurvedic text books and also in accordance with the Rulesin the West Bengal Excise Compilation. We presume that thesame must be the state of affairs in other Statesthere these preparations are manufactured, though appearsthat the petitioners in the present case are mostly fromcalcutta and the manufacture in these cases must be going oncalcutta. ( 11 ) WE therefore allow the petitions and direct that these threemedicinal preparations should not be taxed under the variousexcise Acts in force in various States and can only be taxedin accordance with the provisions of the Medicinal andtoilet preparations (Excise Duties) Act. We pass no orderas to the claim for refund for that is a matter which thepetitioners can take up with the State governments concernedaccording to law. The petitioners will get their costs fromthe respondents-one set of hearing fee.