VICCO LABORATORIES Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) THE only question that is involved in these appeals is as to whether the articles produced by the appellant company come within Entry 32(a) of Schedule H or Entry 24 of Schedule H -l of the Bombay Municipal Corporation Act. If they come within the former, octroi would obviously be payable but if they come within the latter, they may be exempted from payment of octroi.

(2.) SECTION 192(1) of the Bombay Municipal Corporation Act provides that a tax, called 'octroi', shall be levied in respect of articles mentioned in Schedule H cm the entry of the said articles into Greater Bombay for consumption, use or sale therein, Section 192(6), inserted by the Maharashtra Act 12 of 1993, nevertheless provides that notwithstanding anything contained in Section 192, no Octroi shall be payable on the articles specified in Schedule H -l on the entry of the said articles into Greater Bombay for consumption, use or sale therein. The said two sub -sections, being Sub -section (1) and Sub -section (6) of Section 192, and the two Entries relevant for our purpose, being Entry No. 32(a) of Schedule H and Entry No. 24 of Schedule H -l, reproduced hereinbelow for the facility of discussion : 192(1) Except as hereinafter provided, a tax at rates not exceeding those respectively specified in Schedule H shall be levied in respect of the several articles mentioned in the said Schedule, or so many of them or such of them as the Corporation shall from year to year in accordance with Section 128 determine, on the entry of the said articles into Greater Bombay for consumption, use or sale therein. The said tax shall be called an 'octroi'. 192(6) notwithstanding anything contained in the section, no octroi shall be payable on the articles specified in Schedule H -l on the entry of the said articles into Greater Bombay for consumption, use or sale therein. Entry 32(a) of Schedule H : Hair oil, perfumed oils, perfumery of all kinds, scents, attars, scented material, essence sticks, aromatic chemicals, toilet requisites of all kinds, shaving cream, shaving sticks, tooth powder, tooth paste, pomade, combs, brushes, looking glasses, hairpins, breeches, garters and suspenders. Entry 24 of Schedule H -1 Medicines excluding tooth powder or tooth paste, cosmetics, toilet requisites and soaps, whether used as medicine or otherwise, blood and herbal drugs.

(3.) THE case of the appellants is that even though the articles in question may be or are used as tooth powder and tooth paste or cosmetic, they are in essence Ayurvedic medicinal products and are accordingly 'Medicine' and as such are not taxable under Entry No. 32(a) of Schedule H read with Section 192(1); and now that En try No. 24 of Schedule H -l has made it clear that medicines are excluded from payment of octroi, these are evidently no longer taxable, even assuming argue do that they could otherwise be taxed under Entry No. 32(a) 'of Schedule H as tooth paste, tooth powder or toilet requisites. Of the three articles in question, one is expressly branded on the carton as Vicco Vajradanti tooth paste, while the other two go under the labels of Vicco Vajradanti and Vicco Turmeric. But even though these two have not been labelled or branded as tooth powder or cosmetic, the appellants have not disputed that, even though medicinal products, these are nevertheless a paste for the teeth and a cream for the skin. As the copies of the advertisements, being Exhibit 6 series would unmistakably demonstrate, these have been advertised as tooth paste, tooth powder and skin cream. Prima facie, therefore, they would apparently come with Entry No. 32(a) of Schedule H which covers tooth paste, tooth powder as well as toilet requisites. But the argument advanced by Mr. Manohar, learned Counsel appearing for the appellant has almost echoed the vedantic philosophy that the apparent is not the real and Mr. Manohar has seriously urged that even if these articles are labelled and/of advertised or used as tooth paste or tooth powder and skin cream, in reality they are essentially Ayurvedic medicines or medicinal products and as such they do not come within the expressions 'tooth paste' or 'tooth powder' or 'toilet requisites' as used in Entry No. 32(a) of Schedule H and are not taxable as such. And if they are in essence, as Mr. Manohar asserts, Ayurvedic medicines or medicinal products, they are now expressly excluded from payment of octroi duty under Entry 24 of Schedule H -1.