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11. The second grievance of the respondent in the writ petition is that the notification dated 15th May, 1995 is discriminatory as it exempts all kinds of phosphatic fertilizers of NPK except the NPK 23:23:0 fertilizer manufactured by the respondent company. The learned counsel for the respondent contended that all the fertilizers of NPK category of various combinations are treated as phosphatic fertilizers not only by the Government of India but also by the various agricultural departments of the various State Governments, the farmers, the in-trade and in-common parlance. The High Court relying on a decision of this court in the case of Ayurveda Pharmacy & Anr. v. State of Tamilnadu, [(1989) 2 SCC 285] held that the two items of the same category cannot be discriminated. Hence, the High Court held that merely because of composition of NPK, discrimination could not have been made against the respondent.

17. Before finally deciding this aspect of the matter, we need to consider a decision cited by learned counsel for the appellant in the case of Associated Cement Company v. Government of Andhra Pradesh and Anr. [(2006) 1 SCC 597]. Learned counsel for the appellant, drawing inspiration from this judgment, submitted that no reliance could be placed on the decision of this Court in the case of Ayurveda Pharmacy wherein it was held that two items of the same category could not be discriminated and where such distension was made between such items, it should be done in order to save such a classification being in contravention of Article 14 of the Constitution. While examining the case of Ayurveda Pharmacy this Court in Associated cement observed:

19. This court in Associated Cement case thus noted that in Ayurveda Pharmacy case (supra) the charge of discrimination was upheld because of the inherent nature of the commodity and its similarity with others falling within the same category. However, while the distinguishing the facts of the Ayurveda Pharmacy, this court in Associated Cement case made the following observations:

"but in the present case, the rate of tax on cement is made dependent on whether the sale price of cement includes the cost of packing materials."

22. Before parting with this judgment, it would be necessary for us to take into consideration another decision of this Court in the case of State of Assam & Ors. v. Naresh Chandra Ghosh (D) by Lrs. [(2001) 1 SCC 265]. The learned counsel for the appellants relied on this decision in order to distinguish the decision of this Court in the case of Ayurveda Pharmacy. In our view, this decision is factually distinguishable. In paragraph 9, this Court observed that so far as the Assam Act is concerned, unlike the Tamil Nadu General Sales Tax Act, 1959, it identified the medicinal preparations containing more than 12% alcohol as a separate class vis-`-vis such preparations either not containing alcohol or containing less than 12% alcohol. The difference, according to this decision, distinguishes the basis of the judgment of this Court in Ayurveda Pharmacy case in as much as the Assam Act did not identify the medicinal preparations containing more than 12% alcohol as being the same as other medicinal preparations not containing alcohol. It was also noted in that decision that on the other hand these types of spirituous medicinal preparations, which contained 12% alcohol, have been separately classified for the levy of tax under Item 67 of the Schedule to the Act. In that view of the matter, the classification founded in the said decision with regard to the medicinal preparations based on the strength of alcohol contents in the same, cannot be said to be arbitrary and violative of Article 14, as held by the High Court. This decision, as already noted, is of no help to the appellants and the reasons that this decision will not help the appellants have already been discussed above. Accordingly, we are not in a position to rely on the decision as cited by the learned counsel for the appellants.