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TMI Blog1993 (4) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have identical composition. He also held kum kum pencils were classifiable under Heading 3304.00 and they were not eligible for exemption under Notification No. 323/86 dated 22-5-1986. Being aggrieved by the order passed by the Assistant Collector, the respondents preferred an appeal before the Collector Central Excise (Appeals) who by the impugned order held that kum kum pencils and eye brow pencils were different products having different composition and use. The Collector (Appeals) also held that kum kum pencils were classifiable under Heading 3307.90 and were eligible for exemption under Notification No. 323/86 dated 22-5-1986. Being aggrieved by the order passed by the Collector (Appeals) the Department has come up in appeal before us. 2. On behalf of the appellant Shri L.N. Murthy, learned JDR appeared before us. He stated that in arriving at the finding that kum kum pencils were classifiable under Heading 3307.90 and eligible for exemption under Notification No. 323/86 dated 22-5-1986 the Collector (Appeals) had mainly relied upon the judgment of the Bombay High Court in the case of Commissioner of Sales Tax, Maharashtra State, Bombay v. La-Bela Products reported in 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were meant for being applied on different parts of the forehead. 3. Appearing on behalf of the respondents the learned Advocate Shri V. Lakshmi Kumaran stated that the Assistant Collector s finding that Kum Kum pencils and Eye brow pencils were one and the same was not upheld by the Collector (Appeals) who relying on the report of the Chemical Examiner dated 7-2-1991 held that the two products were different. He added that in deciding that Kum Kum pencils would be classifiable under Heading 33.07 of the Tariff in preference to Heading No. 33.04 the Collector (Appeals) had relied upon the observations of the Bombay High Court in the case of Commissioner of Sales Tax, Maharashtra State, Bombay v. La Bela Products that Kum Kum comprises the material which has been used by Hindu women for centuries for making a round spot in the middle of the forehead for proper grooming or as a symbol of good fortune and with the passage of time, instead of only red spots, women have started applying spots of different colours. He contended that in view of the observations of the Hon ble Bombay High Court, Kum Kum or Kum Kum pencils could not be deemed beauty or make up preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arise for consideration in this case : (i) Whether the product Kum Kum pencil would be classifiable under Heading 33.07 of the Central Excise Tariff as held in the impugned order or it would be covered by Heading 3304.00 as claimed by the Revenue. (ii) Whether Kum Kum pencils can be deemed as covered by exemption Notification No. 323/86 dated 22-5-1986. 6. Taking up the first point we find that while dealing with the question of classification of Kum Kum pencil the learned SDR pointed out that in arriving at the finding in regard to the classification of the disputed product and also its eligibility to the concession under Notification No. 323/86 dated 22-5-1986 the Collector (Appeals) had relied solely on the ratio of the judgment of the Hon ble Bombay High Court in the case of Commissioner of Sales Tax, Maharashtra State, Bombay v. La Bela Products (supra). He has argued that the findings of the Collector (Appeals) in the impugned order are not sustainable since the issue involved in the judgment of the Bombay High Court was whether Auto-sticking bindis sold under the name of beauty spots would qualify for exemption in terms of entry 32 of Schedule A of the Bombay Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu women for centuries for making a round spot in the middle of the forehead. At one time women only applied red spots in the middle of the forehead. With the passage of time one finds that instead of red spots women apply spots of different colours, although generally round in shape. Traditionally this spot was used by married women as a sign of their happy state. At present it is being used merely by way of tradition. Generally a normal Hindu woman, particularly married, would regard it as a requisite for proper grooming. But what we have really to see is whether such article could be more appropriately called a toilet article or kumkum. We find that there is no difference between these bindies or so called beauty spots and what is known as kumkum . All these bindies are round in shape and basically suitable for application in the middle of the forehead. If kumkum in the form of a pencil or in the form of liquid can be regarded as Kumkum within the meaning of entry 32 of Schedule A, we see no reason why the goods in question before us also should not be so regarded. In our view, although it may be possible to refer to these goods as toilet requisites or toilet articles, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the terms cosmetic", toilet and toilet powders in the Shorter Oxford English Dictionary (1955) at pages 401 and 2205 respectively. Chambers Twentieth Century Dictionary of the English Language (Second Unabridged Edition). It is not necessary to set out all these meanings here, as it would serve no purpose. Suffice it to say that these meanings indicate that the term cosmetic is primarily applied to any preparation used on the human body to improve the beauty of hair, skin or complexion, whereas a toilet article is an article used in the process of cleaning and grooming one s person. This is clear from the fact that the word toilet is defined as the act or process of dressing. We may set out here the meaning given to the term toilet powder in Webster s New International Dictionary of the English Language. The relevant definition given there runs thus (page 2660): TOILET POWDER: A fine powder usually with soothing or antiseptic ingredients used to sprinkle or rub over the skin of the body as after bathing, usually distinguished from powder used as a cosmetic for the face. Having held that Kumkum and articles such as bindi and Kumkum pencils are used by Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving regard to these well established principles of interpretation of words and entries in taxing statutes we are of the view that the word Kumkum occurring in Notification No. 323/86-C.E., dated 22-5-1986 can be taken as specifying only those products which are known as Kumkum in common or trade parlance. On these considerations in our view only the coloured powder and liquid and circular stickers of different materials which are commonly known as Kumkum and have been used over the ages by Hindu ladies as Kumkum can be deemed as covered by the Notification. Even though the disputed product has been named by the appellants as Kumkum pencil and can be used by ladies as a device for making a coloured mark on the forehead, it is common knowledge that it is not known in common or trade parlance as Kumkum . The test of common or trade parlance in respect of any commodity is as to how it is known by persons who commonly deal or trade in it. It cannot be denied that if one asks for Kumkum in the market he is not likely to be offered Kumkum pencil . Under these circumstances we are of the view that Kumkum pencils cannot be deemed as eligible for exemption under Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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