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TMI Blog1980 (7) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... in commodities like bhimsaini kajal, nagjyoti and baljyoti, which are different varieties of kajal. In respect of the assessment year 1965-66, the Assistant Commercial Taxes Officer, D-Circle, Jaipur, imposed sales tax on the taxable turnover of the assessee in respect of the sale of bhimsaini kajal, nagjyoti and baljyoti at the rate of 10 per cent, as in his view the aforesaid commodities were covered under item 59 of the notification dated 2nd March, 1963. By his order dated 21st January, 1966, the Assistant Commercial Taxes Officer rejected the plea of the assessee that the aforesaid three commodities were medicines or medicinal preparations. An appeal preferred by the assessee was accepted by the Deputy Commissioner (Appeals), Jaipur, by his order dated 31st October, 1966, as he was of the view that bhimsaini kajal and the other two commodities referred to above did not fall under item 59 as they were not cosmetics but they had also preventive medicinal value. However, it was observed by him that the aforesaid three commodities were not sold as medicines under any prescription of a medical practitioner but were applied to the eyes as a precautionary measure. The Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em 59 or under item 65 of the notification dated 2nd March, 1963. We feel that the question has been framed by the Board of Revenue too narrowly and the question which has to be referred must conform to the question which arises out of the order of the Board of Revenue. We, therefore, think it proper to reframe the question referred to us, before proceeding to answer the same, so as to bring out the real issue in controversy between the parties in this case. We, therefore, restate the issue as under: "Whether bhimsaini kajal, nagjyoti and baljyoti manufactured and sold by the assessee are covered by item 65 or under item 59 of the notification dated 2nd March, 1963." Learned counsel for the assessee strenuously contended before us that the three articles, which are subject-matter of reference in this case, are medicinal preparations and are prepared according to ayurvedic formula. According to learned counsel these articles are cleansing agents which are to be applied to the eyes for the prevention of diseases and in order to keep the eyes healthy and for improving the sight. Learned counsel for the assessee also relied upon a certificate of the In-charge, Government Ayurvedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel relied upon the decisions of the Allahabad High Court dated 28th March, 1979, in Sales Tax Reference No. 1134 of 1976 (Commissioner of Sales Tax, U.P. v. Murari Brothers, Ghaziabad[1980] 46 S.T.C. 88.) and of the Madras High Court in State of Madras v. S.P. Vadivel Nadar and Sons[1968] 21 S.T.C. 448. and of the Gujarat High Court in Shah Co. v. State of Gujarat [1971] 28 S.T.C. 5. Learned Additional Government Advocate, appearing for the assessing authority, however, contended that the three articles in question were toilet articles and fell within item 59 of the notification dated 2nd March, 1963, and they were neither medicines covered by item 13 nor they were covered by item 65 of the said notification. The entire material which has been placed on record on behalf of the assessee goes to show that the three varieties of kajal manufactured and sold by the assessee were meant for daily use as cleansing agents for the eyes and if they were so used daily, they would keep eyes healthy, beautiful and attractive as also cool and clean. But the said articles had no medicinal effect for curing any particular diseases or eye ailments. The question with which we are concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered as medicines. In the case of Commissioner of Sales Tax v. Vicco Laboratories[1968] 22 S.T.C. 169. also it was claimed that "Vajradanti" tooth-powder was a medicinal preparation as it was an ayurvedic product. However, their Lordships of the Bombay High Court held that "Vajradanti" tooth-powder was a toilet preparation and observed that it is essential if anybody wants to live in good health to clean one's teeth by tooth-paste or tooth-powder and the powder in question was essentially a toilet preparation, although cleaning one's teeth may have the effect of beautifying his face or his personality. In C.C. Mahajan and Co. v. State of Bombay[1958] 9 S.T.C. 133., it was held that "Badshahi" soap and "Badshahi" powder were toilet articles as they were used as a depilatory for the purpose of cleansing and gromming one's person. In Commissioner of Sales Tax, Madhya Pradesh, Indore v. Shri Sadhna Aushadhalaya[1963] 14 S.T.C. 813., the Madhya Pradesh High Court held that "Maha Bhringraj" hair-oil, which was also an ayurvedic preparation, was a toilet article and it could not be treated as a medicinal preparation merely because it was prepared according to a specified formula giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually cleansing and grooming of one's person". The test to be applied in such matters, in our opinion, would be whether an article or thing is used or is capable of being used commonly for cleansing or grooming one's person. It is immaterial as to which part of the body of a person is selected for cleaning or grooming, because it is not relevant for consideration. If the article is used for a cleansing process of any part of the body, then it is intended to be included within the expression "toilet" articles. It may be that the three varieties of kajal manufactured and sold by the assessee may contain different proportions of the ingredients used for preparation of "kajal", but the fact would still remain that it would not alter the basic character of the articles manufactured and sold as "kajal". It was argued before us by the learned counsel for the assessee that "bhimsaini" kajal cannot be used for the purpose of beautifying the face of a person as on the application of "bhimsaini" kajal tears will come out and that is why it is meant to be used while going to sleep and in the morning. According to the learned counsel, for this reason the same should be considered as medicine. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vising authority. The article "Sarvaroga Sanjeevi Thailam" with which their Lordships of the Madras High Court were concerned in the case of State of Madras v. S.P. Vadivel Nadar and Sons[1968] 21 S.T.C. 448., it was found that it was a medicinal preparation used as a cure for one disease and it was held that merely because it also contained perfume and had an agreeable odour and thereby incidentally, led to beautification of the person, did not alter the character of the article as medicine. That case has no application to the facts of the present case, as it is not disputed that "bhimsaini" kajal is not used as an ordinary kajal for beautifying the eyes but it is used as a cleansing agent. The article which was the subject-matter of consideration before their Lordships of the Gujarat High Court in B. Shah Co., Surat v. State of Gujarat[1971] 28 S.T.C. 5. was "Nycil" medicated powder. After a consideration of the material on record in that case, their Lordships of the Gujarat High Court came to the conclusion that "Nycil" powder is a medicinal preparation, looking to its nature, properties and ingredients and further as it was not used by itself for the purpose of cleansin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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