Having regard to the use of "medical oxygen" to a patient, as rightly concluded by the Additional Appellate Assistant Commissioner, the "medical oxygen" would positively satisfy the above three tests laid down by the Honourable Supreme Court. Therefore, when once the said findings of the Appellate Assistant Commissioner, as regards the nature of product viz., "medical oxygen" has been noted, it would travesty of justice to still hold that would be falling under the category of “gas” and not under the category of Entry 95, 20A of Schedule-I in the years 1991 to 1993. Therefore, the ultimate conclusion of the Tribunal in the orders impugned in setting aside the order of the Appellate Assistant Commissioner, cannot be found fault with. We are not therefore, inclined to interfere with the said order. Moreover, the said issue is directly covered by the decision of Kerala High Court in Southern Gas Ltd v. State of Kerala (2005) 139 STC. 504 as the provisions are pari materia. In the said circumstances, applying the said decision also we have no hesitation to hold that the "medical oxygen" would fall only under entry 95 as of the year 1991 and under entry 20A as of the year 1993 and will not fall under entry 106 as of the year 1991 and entry 25 as of the year 1993 as contended by the petitioner. We therefore, do not find merit in these Tax case revisions as well as the writ petitions and the same fail and are dismissed. No costs.”
