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TMI Blog1968 (7) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 1964, for determining under section 52 the rate of tax payable on the sales in respect of five items of which now the controversy is confined to only three items, viz., (1) Colgate tooth-paste, (2) Colgate tooth-brush 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 refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was not considered in the earlier decision and, therefore, it has been elaborately urged before us. The learned Advocate-General contends for the wider meaning of the expression "toilet article " in the sense that even mere cleansing would be sufficient and the additional ingredient of grooming would not be necessary ingredient at all in the process of toilet. The contention of the learned Advocate-General is that the Legislature has Since reported as State of Gujarat v. Hindustan Traders, Rajkot, at p. 103 supra. purposely not used the appropriate expression starting with "cosmetics" first and ending with "toilet articles" so as to leave no scope for the application of the doctrine of ejusdem generis, which would apply only when specific words are followed by general words and there is a genus. According to the learned Advocate-General, the Legislature has deliberately used the expression "toilet article" of the widest import with the obvious intention of augmenting the revenue and, therefore, the expression "toilet article" could not get any colour by association with "cosmetics". It is true that we will have to answer the present reference only by a true and proper constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the process of toilet. In Commissioner of Sales Tax v. Sadhna Aushadhalaya[1963] 14 S.T.C. 813., the Division Bench, consisting of P.V. Dixit, C.J., and Pandey, J., had to consider the question whether Maha Bhringraj hair-oil was covered under the relevant entry 11 of Schedule 1, Part I, of the C.P. and Berar Sales Tax Act, 1947, in "toilet article". At page 815 the meaning of the word "toilet" is referred to as given in Webster's International Dictionary, as "act or process of dressing, especially, formerly of dressing hair, now usually cleansing and grooming of one's person". A "toilet preparation" is any preparation which is intended to affect, and conceivably to improve the bodily appearance. The words "cosmetics" and "toilet", being words of everyday use, must be construed not in any technical or scientific sense, but as understood in common parlance and in commercial language. The object of all hair-oils is to tidy the hair, to promote luxuriant growth of hair and to prevent dandruff and falling hair, and it cannot be denied that if a hair-oil produces the effects proclaimed and claimed in regard to it, then the appearance of the person using it is undoubtedly impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for grooming one's part of the body is a toilet article, by no process of reasoning can an article, i.e., like toothpowder which is used for cleansing another part of the body, viz. teeth, can be said not to be a "toilet article" and outside entry No. 39. This decision was vehemently relied upon by the learned Advocate-General. It is not necessary for me to go into the question whether the said decision is correct in the context of the two separate relevant entries 39 and 66 in the aforesaid Act in which the words "toilet and cosmetics" are not used in close association. We would, however, record our express dissent from the aforesaid decision in so far as it proceeds on the assumption that the cleansing of a part of the body would in all cases amount to grooming. An obvious illustration would be the case of toilet-paper, which is always used in cleansing in W.C. where nobody would think of any grooming even though there would be even internal cleaning of a person's body by enema, flush or other articles. There may be cleansing of even other parts of the body, where necessarily the result of grooming may not be there. Therefore, in any event, the said decision would not help us in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and cleansing substances used as dentifrices in the early part of 20th century....... Although dentifrices have been considered dental cosmetics at first the emphasis of advertising and the awakening of the hygiene consciousness occasioned by the rising standard of living caused dental cleaning to be regarded as an indispensable daily hygiene, rather than an elective enhancement of beauty........ The primary purpose of a dentifrice is the mechanical cleansing of the teeth........ Although manufacturers of dentifrices have advanced such claims in their behalf as ability to prevent dental caries (decay) and treatment of pyorrhoea, the inexorable fact remains that dentifrices may be expected to perform only the principal function, the cleansing of the teeth, which includes the prevention of accumulation of layers of mucous plaques that give them an appearance of yellowness. Dentifrices are not functionally antiseptics, but in cleansing teeth they serve as detergents for teeth and mucous membranes of the mouth since water is usually used to dispose of the dentifrice after brushing........" Similarly, in the book of Popular Science, Volume 5, it was stated in page 133, "a dentifri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otions, as including hair oils, dyes and dressings, tooth-pastes, washes and dentifrices, and toilet soaps; defined as meaning any external application intended to beautify or improve the complexion, skin, or hair." "Toilet" in Webster's Third New International Dictionary means, "to make one's toilet; dress-groom, the process of washing, grooming and arranging one's self for the day's activities or for a special occasion." "Toiletry" means, "an article or preparation used in making one's toilet (such as a soap, lotion, cosmetic, tooth-paste, shaving-cream, cologne)." In Corpus juris Secundurn, Vol. 86, it is mentioned in respect of "toilet" that "there are several different definitions given for the word 'toilet'. It may mean an act or process of dressing; also, that which is arranged in dressing; attire; dress; 'get up', also a particular costume; and it may designate the several articles collectively used in making one's toilet. While formerly the term referred specially to the act or process of dressing hair, in current use it means cleansing and grooming of one's person. Thus, the act of washing and cleansing the hands is a part of making the toilet and the daily shave is gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een easily indicated clearly or mentioned specifically as other items were mentioned in the notification, the effect of which was only that sales tax was levied at a single point instead of being levied at several points. Finally, in Deputy Commissioner v. Jos Zachariah[1965] 16 S.T.C. 799., the Division Bench of the Kerala High Court, consisting of M.S. Menon, C.J., and P. Govindan Nair, J., considered the expression "toilet requisites" in entry 48 of that relevant sales tax legislation as under: "'Toilet requisites' is a general expression and it covers, broadly speaking, three categories of things: (1) toilet preparations; (2) toilet accessories; and (3) toilet instruments. The items enumerated in entry 48scents and perfumes, powders, snows, scented hair-oils, scented sticks, cosmetics and soaps-all come under the first category. The hairpins and combs intended for being worn in hair come under the second category." The combs with which the Division Bench was concerned, being strips of wood, bone, horn etc. with teeth used for disentangling, cleaning and arranging the hair, or keeping it in place, come under the third category. As the expression "toilet requisites" was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntable on some occasion or in the sense of beautifying his appearance. We have already considered in our previous decision that hair-combs also served this purpose as they could be directly used for grooming a man. Soap also, while it cleanses a person, also grooms him, if it is a soap of the family of toilet articles. There can be no dispute about hair-oil which was always considered as "toilet article" as held in the aforesaid decision in Commissioner of Sales Tax v. Sadhna Aushadhalaya[1963] 14 S.T.C. 813., to which we have already referred. The only controversy in the present case is that the learned Advocate-General argues that ejusdem generis rule has no application and, therefore, there is no rule of construction on which the expression "toilet articles" can be narrowed down. On the other hand, Mr. Mehta on behalf of the assessee invokes the rule of noscitur a sociis. These rules have been well explained by his Lordship Gajendragadkar, J., (as he then was) in State of Bombay v. Hospital Mazdoor SabhaA.I.R. 1960 S.C. 610 at p. 613. His Lordship observed that the rule of construction noscitur a sociis according to Maxwell, meant that when two or more words which were susceptib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, apply the wider doctrine of noscitur a sociis to find out the real meaning of the phrase "toilet articles" in the context of its use in close association with these other words and where "cosmetics" even have been used in the narrower sense. In that view of the matter, we must hold that the words "toilet articles" would have a restricted meaning as those articles which are of direct use in the process of toilet, that is the process of grooming a person by beautifying his appearance. The process of toilet would not amount to mere cleansing of a person, for giving any wider meaning. If the Legislature wanted a very wide inclusion, it could have easily used the expression "toilet requisites". As we have already mentioned, even the words of exclusion support this narrower meaning. We must also bear in mind that if all the words used by the Legislature can be given sense on the basis of a strict construction, there is a presumption against any wider inclusion in such a taxing statute. Even if the language is said to be capable of two meanings, one a wider and the other a narrower one, we should resolve the ambiguity in favour of the citizen. This principle of construction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Gujarat Act 25 of 1962. Entry 7 of Schedule E and entry 19 corresponded with the entries 39 and 66 respectively. Entry 7 was in the following terms: "Toilet articles including hair cream, hair tonic and hair oil (but excluding soap)." While entry 19 mentioned: "Perfumes, depilatories and cosmetics (except soap and articles specified in entry 7 in this Schedule)." Thus, it is clear that before the present entry 21A was brought in the Act of 1959 by the Gujarat Amendment Act 25 of 1962, this topic was covered by two separate entries 7 and 19 or old entries 39 and 66, even though in the original Act of 1946 there was a combined entry 6 as at present. It may also be noted that the old entry 7 in the 1959 Act is now restricted only to hair-oil, after the 1962 amendment and hair-oil has been specifically excluded from entry 21A. The learned AdvocateGeneral, therefore, argued from this legislative history that the Legislature has now combined these two entries with the obvious purpose of augmenting the revenue so that both the "toilet articles" and "cosmetics" carry higher rate of tax, i.e. 10 nP., and 3 nP. general sales tax as per entry 21A, by taking out toilet articles from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when all of them attracted such a high rate, the legislative intention would be clearly to cover only those articles, which groom a man and which beautify appearance and that entry 21A would not cover such "toilet articles" which have no direct grooming effect at all and which are merely used for cleansing any part of a person, even like toilet-paper. In that view of the matter our interpretation of the relevant entry 21A is that "toilet articles" under that entry would cover only those articles which are of direct use in the process of grooming a person by beautifying his appearance and that expression is not used in a wider sense of articles which collectively go in making one's toilet or which are used for merely cleansing one's person. The learned Advocate-General next argued that even on that narrow interpretation tooth-brush and tooth-paste would clearly fall within the expression "toilet articles". As we have already pointed out from the passage in Somasundara Mudaliar v. The State of Madras[1963] 14 S.T.C. 943., the primary function of a tooth-brush and tooth-paste when used together or even independently, would be to cleanse the teeth. The primary function is of dent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted soap and shampoo might be common, the proportion of the ingredients would certainly be different and shampoo would also contain some ingredients so as to leave the hair soft and lustrous; it, therefore, could not be considered to be identical with liquid soap. The Tribunal finally mentioned that the intention of the Legislature in using the expression "soaps" in entry 28 of Schedule C is, therefore, to include only those articles which are in common parlance known and sold as soaps of different varieties. Shampoo, therefore, cannot be considered to be soap within the meaning of entry 28 of Schedule C and will not be excluded from toilet articles. The reasoning of the Tribunal really amounts to recasting and reading the entry for soap in entry 28 of Schedule C as soap, excluding "toilet articles", i.e., toilet soap. This is not what the Legislature has done. In entry 21A "toilet articles" excluding soap are shown and it is not the other way round. Soap may be a toilet article and shampoo may also be a toilet article. We are not, however, concerned with what is the meaning of "toilet articles" in ordinary common parlance. We are concerned with entry 21A as it stands which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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