Judgment

WANCHOO, J. : These six petitions under Art. 32 of the Constitution raise a common point and will be dealt with together. The main question raised in all these petitions is whether the State Governments are entitled to tax the three Ayurvedic preparations, namely, Mritasanjibani, Mretasanjibani Sudha and Mritasanjibani Sura, which are manufactured by these petitioners, under the various Excise Acts in force in the respective States. Further points were raised in the petitions as regards the validity of the restrictions imposed in the matter of the import, export, possession and sale of these three Ayurvedic preparations. But the learned conusel for the petitioners stated before us that he was not pressing any other point except one viz., whether the various State-Governments could tax these three Ayurvedic preparations under the various Excise Acts in force in the State concerned. We propose, therefore to deal with this point only in the present cases.

2. The case of the petitioners is briefly this. They carry on business as manufacturers of medicinal preparations according to the Ayurvedic system of medicines manufactured by them are these three preparations. These Ayurvedic preparations are manufactured by the process of fermentation and distillation in accordance with the Ayurvedic system of medicine following the formula in standard books known as Ayurved Sangraha, Bhaisajya Ratnabali and Arka Prakash. These books according to the petitioners, contain extracts from all authoritative ancient Ayurvedic treatises accepted throughout India and are in vogue as Ayurvedic pharmacopoeias in the various States. Though the three preparations have three different names they are in reality only one medicine and prepared according to a single formula in these books. The petitioners aver that these three preparations are manufactured in accordance with the standard Ayurvedic pharmacopoeias in vogue in various States and are efficacious amongst others in the following diseases :

(a) in typhoid fever (Sannipatic Jwara) during collapsed condition,

(b) in cholera;

(c) in case of loss of appetite to increase power of digestion;

(d) in rheumatism, sciatica, etc., and

(e) to remove weakness, impart strength and vigour and also as a general tonic and restorative for convalescent patients.

3. Before the Constitution came into force, all these three preparations were liable to provincial excise duty under item 40 of List II of the Seventh Schedule to the Government of India Act, 1935. The Constitution, however, made a change in the three legislative Lists with respect co-excise and under item 51 of List II of the Seventh Schedule the States have the power to levy excise duty on alcoholic liquor tor human consumption and on opium, Indian hemp and other narcotic drugs and narcotics but not including medicinal and toilet preparations containing alcohol or any substance like opium etc. Further, under item 84 of List I of the Seventh Schedule the Union has the power to impose duties of excise on tobacco and other goods manufactured or produced in India except (i) alcoholic liquors for human consumption and (ii) opium, Indian hemp and other narcotic drugs and narcotics but including medicinal and toilet preparations containing alcohol or any substance like opium etc. Thus the Constitution took away the power of the States to impose duties of excise on medicinal and toilet preparations containing alcohol or any substance like opium etc., and gave that power to the Union. However Art. 27 7 of the Constitution provided that

"any taxes, duties cesses or fees which immediately before the commencement of this Constitution were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or 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 purpose