The judgment of the Court was delivered by

MANCHANDA, J. - This is a case stated under section 11(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The question referred is :

"Whether the oxygen so prepared is a chemical liable to be taxed under section 3-A at the rate of 0-1-0 anna per rupee or it is medicine liable to be taxed under section 3 at a reduced rate ?"

The material facts are these : The assesses manufactures, inter alia, oxygen gas and also welding apparatus and stores and sells them. The assesses prepares the oxygen by the industrial process known as fractional distillation of liquid air. In other words air is first liquified and then the other gases are allowed to escape and pure oxygen is obtained. The oxygen so produced is sold by the assesses for purposes of welding metals and also for the use of medicinal purposes in the treatment of pneumonia, bronchitis etc. There is no material on the the record as to what quantity was sold for medicinal or welding purposes. The total turnover of gases which include acetylene gas was Rs. 3,92,384.67 nP. It was claimed that gases manufactured were not chemicals and therefore did not fall to be taxed at