PRAKASH TRADING CO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS reference raises an interesting question as to the true and proper interpretation of entry 21a of Schedule E under the Bombay Sales Tax Act, 1959, hereinafter referred to as "the Act", in respect of 3 articles, viz. , (1) Palmolive shampoo, (2) Colgate tooth- brush and (3) Colgate tooth-paste. The Tribunal has referred to this Court the following two questions : " (1) Whether on the facts and in the circumstances of the case Palmolive shampoo (large size), sold under bill No. 505 dated 15th July, 1964, is a toilet article within the meaning of entry 21a of Schedule E or is soap within the meaning of entry 28 of Schedule C or is covered by entry 22 of Schedule E to the Bombay Sales Tax Act, 1959, and liable to tax accordingly. (2) Whether on the facts and in the circumstances of the case (i) Colgate tooth-paste and (2) Colgate tooth-brush sold under bill No. 505 dated 15th July, 1964, are toilet articles within the meaning of entry 21a of Schedule E or are covered by entry 22 of Schedule E to the Bombay Sales Tax Act, 1959, and liable to tax accordingly. " The short facts which have given rise to this reference are as under : The applicant M/s. Prakash Trading Company had applied in respect of bill No. 505 dated 15th July, 19647, for determining under section 52 the sate of tax payable on the sales in respect of five items of which now the controversy is confined to only three items, via. , (i) Colgate tooth-paste, (2) Colgate tooth-brnsh and (3) Palmolive shampoo (large size ). The Deputy Commissioner of Sales Tax held that all these three articles were toilet articles within the meaning of entry 21a of Schedule E and were liable to tax accordingly. In appeal, the Tribunal has confirmed the said finding holding that all these three articles were toilet articles. The Tribunal further held that the shampoo in question was not soap as various other ingredients went into the making of the said shampoo and, therefore, it was not covered in the specific entry 28 of Schedule C. The Tribunal accordingly dismissed the appeal on the basis that all these articles were rightly held covered under entry 21a of Schedule E. The assessee has, therefore, required the Tribunal to make a reference to this Court on the aforesaid two questions : The relevant entry 21a of Schedule E is as under : " 21a. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in entry 28 in Schedule C, and hair combs as specified in entry 3d of this Schedule and hair oil as specified in entry 7 of this Schedule ). "

(2.) FROM the Schedules of the various entries, it is clear that all the three excluded items bear a lower rate of tax than the one which is specified in this entry 21a and, therefore, these articles are excluded by making a specific provision elsewhere. We had occasion to interpret this entry in Sales Tax Reference No. 2 of 1966 in our decision, dated 21st June, 1968, [since reported as State of Gujarat v. Hindustan Traders, Rajkot, at p. 103 supra] in which we held that a shaving-brush was not a "toilet article" within the meaning of entry 21a. While interpreting this entry, we had referred to the definition of "toilet" in Webster's New Twentieth Century Dictionary at page 1918 and pointed out that the expression "toilet articles" would cover articles "of or for the toilet", and the act or process of "toilet" would be the process of dressing or grooming one's person, including the grooming of one's hair. After considering the proper scope of this entry in the context of the collocation of words used, along with the exclusion of those 'three items and especially, as razor and razor-blades which were specifically mentioned in entry 28 of Schedule C were not excluded from the list of "toilet articles" in entry 21a in Schedule E, we gave a narrower meaning to the expression "toilet articles" by confining them only to those articles which produce direct toilet effect, i. e. which were directly used in dressing or grooming a person so as to beautify his appearance. We did not include all those articles which when collectively used make one's toilet. As shaving-brush could not be independently used for making one's toilet, we had held that it was not a "toilet article".

(3.) AT page 134, the Division Bench pointed out that the words "toilet articles" included within its scope a large variety of articles and the category might not be capable of easy definition, although in a given case it might not be difficult to see whether the article fell within the category or not. It was further observed : " Turning to the definition of the word 'toilet' in Webster's New International Dictionary the meaning of toilet is given to be 'act or process of dressing; esp. , formerly, of dressing the hair, now, usually, cleansing and grooming of one's persons. There can be in our opinion little doubt that a depilatory is used for purpose of cleansing and grooming one's person and, therefore, it is a toilet article. "