The judgment of the Court was delivered by

DESAI, J. - In this reference made at the instance of the assessee the Gujarat Sales Tax Tribunal (hereinafter called "the Tribunal") has referred the following questions of law for the opinion of this Court under section 69 of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Act").

"(1) Whether, on the facts and in the circumstances of the case, Vitablend AD 3 and Vitablend AD 3 Forte are covered by entry 21 of Schedule I to the Gujarat Sales Tax Act, 1969, for the year 1969 ?

(2) Whether, on the facts and in the circumstances of the case, Vitablend AB 2 D 3 and Vitablend WM Forte are covered by entry 25 of Schedule I to the Gujarat Sales Tax Act, 1969, for the year 1969 ?"

In order to appreciate the points in controversy, a few facts may be set out.

The assessee is a public limited company. It is carrying on the business of manufacturing pharmaceutical and nutritional products and antibiotic and other products. Those products are meant not only for human beings but also for cattle and poultry. With a view to supplementing the deficiency of vitamins in the normal diet given to cattle and poultry, the assessee manufactures and markets different products. We are concerned herein with four of such products. They are : (1) Vitablend AD 3, (2) Vitablend AD 3 Forte, (3) Vitablent AB 2 D 3, and (4) Vitablend WM Forte. The products at serial Nos. (1) and (2) are meant for cattle and the products at serial Nos. (3) and (4) are meant for poultry. The assessee was desirous of ascertaining whether the sales of the above-mentioned products were exigible to tax under the Act. An application was, therefore, made by the assessee under section 62 of the Act to the Commissioner of Sales Tax for the determination of the question whether on the sales of those products it was liable to pay any tax and, if so, the rate of tax. The application was heard by the Deputy Commissioner of Sales Tax. The contention of the assessee before the said authority was that the products at serial Nos. (1) and (2) were cattle-feed within the meaning of entry 21 of Schedule I and that the products at serial Nos. (3) and (4) were poultry-feed within the meaning of entry 25 of Schedule I and that, therefore, they were goods the sale or purchase of which was free from all taxes. The alternative contention of the assessee was that all the aforesaid products were drugs and medicines meant for cattle or poultry, as the case may be, and that, therefore, they were covered by entry 26(1) of Schedule II, Part A. The Deputy Commissioner of Sales Tax held that none of the entries on which the assessee relied was attracted in relation to the products in question and that those products were covered by the residuary entry, that is to say, entry 13 of Schedule III and their sales were taxable at the rate mentioned in the said entry. The assessee, feeling aggrieved by the said determination, preferred an appeal before the Tribunal. At the hearing of the said appeal, the assessee confined its case only to entry 21 and entry 25 of Schedule I and no argument based on entry 26(1) of Schedule II, Part A, was advanced. The Tribunal, following its earlier decision in the case of Hoechst Pharmaceutical Limited v. State of Gujarat (Appeal No. 21 of 1972 decided on 9th February, 1973), held that the products in question were neither cattle-feed nor poultry-feed and that, therefore, they were not covered by entry 21 or entry 25, as the case may be, of Schedule I. The Tribunal, therefore, confirmed the determination of the Deputy Commissioner of Sales Tax. It is under these circumstances that the questions set out above have come to be referred to this Court.

Let us first read the entries which are the subject-matter of the reference. Entry 21 of Schedule I reads as follows :

"21. Cattle-feed (other than mechanically produced cattle-feed) including fodder and concentrates but excluding cotton-seeds, oilcakse and de-oiled cakes