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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: PRAKASH TRADING CO.  AHMEDABAD

DATE OF JUDGMENT22/08/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1973 AIR  960            1973 SCR  (1) 918  1972 SCC  (2) 689

ACT: Bombay Sales Tax Act, (51 of 1959) as amended by Gujarat Act 25  of 1962, Sch.  C. entry 28 and Sch, E, entry  21A-Liquid soap, tooth paste and tooth brush whether toilet articles.

HEADNOTE: Entry 28 of Schedule C of the Bombay Sales Tax Act, 1959, as amended by the Gujarat Act. 1962, pertains to soaps.   Entry 21A of Schedule E deals with toilet articles excluding  soap as  specified  in Entry 28 in Schedule C. and  Entry  22  of Schedule E is a residuary entry relating to all goods  other than those specified from time to time in the Schedules  and in the preceding entries. On  a reference under s. 61 of the Act, the High Court  held that  Colgate tooth paste and Colgate tooth brush  were  not toilet articles falling under Entry 21A but were covered  by the residuary Entry 22; and that Palmolive Shampoo was  soap within the meaning of Entry 28 of Schedule C. In appeal to this Court, HELD : (1) Colgate tooth paste and brush are toilet articles under Entry 21A, Sch.E. (a)  in Sarin Chemical Laboratory v., Commissioner of  Sales Tax, U.P. (1970) 26 S.T.C. 339 (SC), this Court came to  the conclusion  that  tooth  powder  was  a  toilet   requisite. Moreover,   this  Court  by  approving  in  Sarin   Chemical Laboratory  Case  the decision of the Bombay High  Court  in Commissioner  of Sales Tax v., Vicco Laboratories (1968)  22 S.T.C.  169,  approved  the view that  for  the  purpose  of Bombay,  Sales-Tax  Act  also  dental  powder  is  a  toilet article.   The reasoning given by this Court in  respect  of tooth  powder  in  Sarin Chemical  Laboratory’s  case  holds equally good for tooth paste. [920F; 921D-F] (b)  The dictionary meaning of the word ’toilet’ as "an  act or  process  of cleansing one’s person" shows that  a  tooth brush,  which is meant for cleansing one’s teeth, is also  a toilet  article.   If  a tooth brush is  in  fact  used  for cleansing  one’s teeth it must be held to be an  article  of toilet even  teeth may also be cleansed without the use of a tooth brush.   [920G-H;921F-G] (2)  Shampoo  is  a  kind of liquid soap.  It  has  all  the ingredients  of a soap though the proportion  of  ingredient

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differs  from  those of a soap in the form of a  cake.   But that fact would not alter the basic character of shampoo and take  it out of the category of soaps.  The High  Court  was therefore  right  in holding that the  Shampoo  falls  under Entry 28, Schedule C. [922C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 37 of 1969. Appeal  by special leave from the judgment and  order  dated July  3,  1968  of  the Gujarat  High  Court  in  Sales  Tax Reference No. 3 of 1967. 919 M.   C.  Bhandare and S. P. Nayar, for the appellant. M.   C. Chagla and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Khanna, J.     This  appeal  by special  leave  is  directed against  the judgment of Gujarat High Court in  a  reference made  to  it under section 61 of the Bombay Sales  Tax  Act, 1959 (Bombay Act 51 of 1959) as amended by the Bombay  Sales Tax  (Gujarat Amendment) Act, 1962 (Gujarat Act 25 of  1962) (hereinafter referred to as the Act). The  respondent made an application under section 52 of  the Act   to   the  Deputy  Commissioner  of   Sales   Tax   for determination  of  the rate of tax payable on sale  of  five articles,  including Palmolive shampoo, large size,  Colgate tooth  paste, giant size and Colgate tooth brush  for  adult use.   It  was  urged by the respondent  before  the  Deputy Commissioner  that  Palmolive shampoo was a kind  of  liquid soap  and was covered by entry 28 of schedule C to the  Act. As regards Colgate dental paste and Colgate tooth brush, the respondent  submitted  that those were  articles  meant  for cleansing  teeth  and  were  not  toilet  articles.    These contentions  were repelled by the Deputy  Commissioner,  who held that the aforesaid three articles were toilet  articles within the meaning of entry 21A of schedule E to the Act and liable  to tax accordingly.  The Gujarat Sales Tax  Tribunal on appeal took the same view as had been taken by the Deputy Commissioner.   On application filed by the respondent,  the following two questions were referred by the Tribunal to the High Court:               "1.   Whether   on  the  facts  and   in   the               circumstances  of the case  Palmolive  Shampoo               (Large  Size)  sold under Bill No.  505  dated               July  15, 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 (1)  Colgate  Tooth               Paste  and (2) Colgate Tooth Brush sold  under               Bill  No. 5’05 dated July 15, 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". 920 The answer of the High Court on the first question was  that Palmolive  shampoo  was  not a  toilet  article  within  the meaning of entry 21A of schedule E to the Act but was  scrap within the meaning of entry 28 of schedule C and was  liable to  be  taxed accordingly.  As regards question No.  2,  the

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answer  of the High ,Court was that Colgate tooth brush  and Colgate  tooth  paste were not toilet  articles  falling  in entry  21A of schedule E but were covered by  the  residuary entry  22  of  schedule  E  and  were  liable  to-be   taxed accordingly. In  appeal in this Court Mr. Bhandare on behalf of  the  ap- pellant has argued that all the three articles in  question, namely,  Palmolive shampoo, Colgate tooth paste and  Colgate tooth brush are toilet articles as mentioned in entry 21A of schedule E to the Act.  As against that Mr. Chagla on behalf of  the respondent has canvassed for the correctness of  the view of the High Court. We  may at this stage refer to the three entries with  which we  are  concerned.   Entry  28 of schedule  C  to  the  Act pertains to soaps.  Entry 21A of schedule E to the Act deals with the following goods:               21A.  Toilet articles including hair cream and               hair  ionic;  and perfumes,  depilatories  and               cosmetics  (except soap as specified in  entry               28 in schedule C and hair oil as specified  in               entry 7 of this schedule)." Entry  22  is a residuary entry and relates  to  "all  goods other than those specified from time to time in schedules A, B, C and D in the preceding entries." So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the  case of  Sarin Chemical Laboratory v. Commissioner of Sales  Tax, U.P.(1).  It  was held in that case that tooth powder  is  a toilet  requisite  and  was liable to  sales  tax  as  such. Reference  in  this connection was made  to  the  dictionary meaning  of the words " cosmetic", "toilet" and  "toiletry". "Cosmetic", according to Webster’s International Dictionary, is  "a  preparation to beautify or alter appearance  of  the body or for cleansing, coloring, conditioning or  protecting skin,  hair,  nails, eyes or teeth".   The  same  dictionary gives  the meaning of the expression "toilet" as "an act  or process  of dressing, especially formerly of  dressing  hair and  now  usually cleansing and grooming of  one’s  person". "Toiletry"  according to the dictionary, is "an  article  or preparation  used  in  making one’s  toilet  such  as  soap, lotion, cosmetic, tooth-paste, (1)  [1970] 26 S.T.C. 339.  921 shaving cream, cologne etc." It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in  common  parlance, tooth powder was considered to  be  an article  of  toilet.   As  such,  the  Court  came  to   the conclusion  that tooth powder was a toilet  requisite.   The reasoning given by this Court in respect of tooth powder  in the above cited case, in our opinion, holds equally good for tooth  paste.  Likewise, the dictionary meaning of the  word "toilet" relied upon in the above case "as an act or process of cleansing of one’s person" shows that a tooth brush which is meant for cleansing one’s teeth is a toilet article. Mr. Chagla has tried to distinguish the case of Sarin Chemi- cal  Laboratory (supra) on the ground that was a case  under the  U.P.  Sales Tax Act, while we are dealing with  a  case under the Bombay Sales Tax Act.  This submission is  clearly untenable,  because we are concerned with the concept  of  a toilet  article as understood in common  parlance.   Neither the  Bombay  Sales  Tax  Act nor  the  U.P.  Sales  Tax  Act contained any special definition of the toilet articles and, as  such,  the  reasoning  in the  case  of  Sarin  Chemical Laboratory  (supra) cannot be held to relate only  to  cases

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under the U.P. Sales Tax Act.  Apart from that, we find that in the case of Sarin Chemical Laboratory (supra) this  Court approved  of the decision of the Bombay High Court  in  Com- missioner  of Sales Tax v. Vicco Laboratories (1).   In  the last  mentioned  case it was held by the Bombay  High  Court that  Vicco  Vajradanti dentifrice in the form of  a  powder used  for cleansing teeth was a toilet article.   It  would, therefore,  follow  that  this Court has  set  its  seal  of approval on the view that for the Bombay Sales Tax Act also, dental  powder  used  for cleansing of  tooth  is  a  toilet article. We are also unable to accede to the submission of Mr. Chagla that as tooth can also be cleansed without the use of  tooth brush, the same is not a toilet article.  The question  with which we are concerned is not whether the use of tooth brush can  be dispensed with, but whether it is actually used  for the  purpose of cleansing one’s teeth.  If the  tooth  brush is, in fact, used for cleansing one’s, teeth, the same  must be held to be an article of toilet. The  view taken by the High Court regarding shampoo that  it constitutes soap, in our opinion, is well founded.  The High Court in this respect has referred to the following  passage in the Encyclopedia of Chemical Technology:               ". The soaps used for shampooing the hair  are               essentially the same as those described  under               "soap".               (1)   [1968]22 S.L.C. 169.               922               See  Cosmetics Vol. 6 P. 550 soap).  They  are               available   in  several  forms;  bar,   cake,.               liquid,  powder  (or  granulles)  and   jolly.               Although  there  will ’undoubtedly  always  be               numbers  of  individuals who will  wash  their               hair  with  any cake of soap that  may  be  at               hand,   the  prepared  liquid  shampoos   have               rapidly  risen  to first place in  the  retail               trade.   The bars and cakes are  shoved  down,               the granules are dissolved and the jollies are               diluted,  to  prepare liquid  shampoo  of  the               desired concentration...." The  High  Court  concluded from the  above  that  Palmolive shampoo  was soap covered by entry 28 of schedule C  to  the Act.   We agree with the High Court in this respect and  are of  the’ opinion that shampoo is a kind of liquid soap.   It has all the essential ingredients of a soap.  It may be that the proportion of the ingredients of the liquid soap  differ from  those  of a soap in the form of a cake but  that  fact would  not alter the basic character of shampoo and take  it out of the category of soaps.  As  a result of the above, we partly accept the appeal  and set  aside  the judgment of the High Court in so far  as  it relates  to tooth paste and tooth brush.  Both of  them,  in our opinion, are toilet articles within the meaning of entry 21A  of  schedule E to the, Act.  We,  however,  uphold  the judgment of the High Court in so far as the High Court  has’ held that shampoo is soap within the meaning of entry 28  of schedule  C to the Act.  In view of the partial ’success  of each party, we leave the parties to bear their own costs  of this Court as well as in the High Court. V.P.S.                                       Appeal   partly allowed 923