JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 16.10.1990 arising from the proceedings under Section 35 of the Act.
2. Opposite party moved an application under Section 35 of the Act before the Commissioner of Sales Tax for its opinion on the following question:
"1. Whether the applicant is liable to pay sales tax in respect of the composite charge received from the patients for their examination, check-up advice and presentation of medicines by the doctors for the purpose of their treatment?
2. Whether the supply of medicines by the applicant to these patients which is purchased from the market, amount to manufacture of medicines under the U.P. Sales Tax Act?
3. Whether the applicant is exempt from sales-tax keeping in view of a fact that the medicines are provided to the patients and the price of medicines is not charged separately, and it is a consolidated charge for check-up, examination, treatment and for prescribing the medicines by the attending physicians.?
4. Whether as per facts, merits and circumstances of the case, where services and sale are not severable the question of liability for payment of sales-tax would arise, and the petitioner not being a dealer, would be exempted from sales-tax?"
3. However, Commissioner of Sales Tax re-framed the questions as follows:
"1. Whether the applicant is a 'dealer' as defined in Section 2(c) of the U.P. Sales Tax Act, 1948?
2. Whether the preparation of mixtures out of the medicines purchased from the market amounts to 'manufacture' as defined in Section 2(e-1) of the U.P. Sales Tax Act, 1948?
3. Whether the patients pay to the applicant the fees for check-up, examination and treatment and the cost of the medicines as a lump sum, i.e., the service and sale are not severable, what will be the turnover of the applicant?"
4. Commissioner of Sales Tax by order dated 19.06.1985 held that the essence of the contract between the opposite party and its patients was to supply specific medicines which may cure him and the process of examination and check-up was only to ascertain the type of medicines to be supplied to the patient. It has been further held that the opposite party purchased and supplied medicines in the course of his that business and, therefore, it was a "dealer" as defined in Section 2(c) of the Act. On the basis of the judgment of this Court in the case of CST v. Chandausi Chemicals, Moradabad, reported in S.T.I., 1985 Allahabad High Court, 65 held the opposite party as manufacturer as defined in Section 2 (ee) of the Act. Consequently, he held that the opposite party was liable to pay tax on its total receipts. Opposite party filed appeal before the Tribunal. Tribunal reframed the questions as follows:
"Whether composite charges realised by the applicant for examination, check-up, diagnosis and supply of medicines from the patients coming to its Homoeo Clinic for treatment is exigible to sales tax when mixture of medicines so supplied are purchased by the appellant from inside or outside U.P."
5. Tribunal referred the following facts:
"It is not disputed that the appellant supplies medicines to those patients only who come for treatment at its Clinic and no medicines are supplied without prescribing treatment. Similarly, medicines are not supplied to outsiders. This supply of medicine is done only after the patient has been examined, checked-up and a diagnosis has been reached. Medicines are not charged for separately and the composite charges are realised on the basis of prescription after examination and diagnosis etc. The price of medicines is nominal in the composite charges. No mixture of medicines is prepared or supplied. In fact even the blanks are given as a part of psychological treatment showing clearly that the real work done at the Clinic is a treatment of patients and not supply of medicines. Thus the job done at the appellant's Clinic is an application of labour and skill (professional competence)."
6. Tribunal treated the job of the opposite party akin to the job of photographer, who takes photographs in his studio, develop the negative, or do other photographic work and thereafter, supplies prints to its client and realises consolidated charges for the entire job. Tribunal relying upon the decision of the Apex Court in the case of The Assistance Sales Tax Officer and Ors. v. B.C. Kame, reported in (1977) 39 S.T.C., 237 held that the supply of the medicines was not the sale.
7. Heard learned counsel for the parties.
8. Learned Standing Counsel submitted that the Tribunal has erred in rejecting the case of the revenue that the supply of the medicines was sale. He submitted that the Commissioner of Sales Tax had held the opposite party as manufacturer, because dealer was supplying the medicines by mixing 2-3 medicines and the supply of the medicines was the predominant activity, which was followed by the recommendations or prescription of the doctor and, therefore, the supply of the medicine was liable to tax. Learned Counsel for the opposite party supported the order of the Tribunal.
9. I do not agree with the submission of the Learned Counsel Tribunal proceeded on the fact that the opposite party was not involved in any activity of mixing the medicines. Fact on which decision was given was that the patients came to the opposite party for their treatment. Doctor sitting in a clinic of the opposite party examined the patients, diagnosed that disease and thereafter, prescribed the medicines, which was provided to the patients. A consolidated amount was charged from the patients for the examination, diagnoses, and for prescribing of medicines. In entire activities the intent of the patient was to get himself treated by the doctor for the cure of his disease and not to buy medicines. Supply of medicine was incidental to the examination of the patient, diagnosis the disease and prescribing of the medicines. In the examination of the patients, diagnosing the disease and prescribing the medicine, the skill of the doctor was required, which was fundamental and predominant. Since one composite price for the entire activity was charged, the work carried on by the opposite party was in the nature of job work/service. Even if there was supply of the medicines but work being in the nature of job work and composite price being charged, the price of the medicines could not be separately liable to be taxed Tribunal has rightly held that the value of the medicine is not liable to tax. Before parting with case, I may say that this view of the Tribunal is relevant for the period before the 46th Constitutional Amendment. After the 46th Constitutional Amendment definition of the "Sale" has been enlarged and the value of the goods involved in the execution of the works contract, has been made taxable, as per the notification issued under Section 3-F of the Act.
10. In the result, revision fails and is accordingly, dismissed.