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TMI Blog1984 (11) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... a determination as to whether the said transaction was covered by entry 19 of Schedule E or whether it was covered by entry 22 of Schedule E. The respondents produced before the Commissioner several certificates from practitioners of ayurvedic medicine to show that "Jai Kajal" was a medicine and not a cosmetic. By his order dated 18th July, 1970 the Commissioner held that "Jai Kajal" was a cosmetic falling under entry 19 of Schedule E. 2.. Being aggrieved by the order of the Commissioner, the respondents filed an appeal before the Tribunal. The Tribunal by its judgment dated 15th July, 1971 held that "Jai Kajal" was not a cosmetic and it fell under the residuary entry 22 of Schedule E to the Act. In respect of this determination the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for beautifying the eyes? Opinion on this point may differ, for aesthetic tastes tend to vary greatly from person to person. Beauty is after all, in the eyes of the beholder. We cannot however, go into individual tastes on this point. We will first have to see whether in common parlance kajal is considered as a preparation used for the "beautification" of eyes. Here, unfortunately, we have before us, a divided opinion. The Commissioner of Sales Tax felt that commonly this preparation is used as a part of make-up by the ladies. The Tribunal, however, felt that as far as common knowledge goes, kajal is used mainly for the health of the eyes. In the absence of any evidence, therefore, it would be difficult to draw any inferences on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly concerned with the reasons for which this particular variety of kajal is said to be used by the public. From the material on record it would seem that this particular variety of kajal is predominantly used for its alleged therapeutic qualities rather than for its cosmetic effect. In view of this material which is before us we are of the view that "Jai Kajal" manufactured by the respondents will fall under the residuary entry 22 of Schedule E and not under entry 19 of Schedule E. We are not called upon to give any decision about other types of kajal. 8.. In the present case there are certain other material facts which should also be noted because a strong reliance was placed on these facts by Mr. R.V. Patel, learned Advocate for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " is a "medicine". 9.. In the present reference, the applicants filed their paper book in the High Court only on 28th February, 1979, i.e., almost 51 years after the reference application was granted by the Tribunal, and almost 3 years after the reference application of the Commissioner of Sales Tax was rejected in the second determination proceedings. The notice in the present reference was served on the respondents on 24th July, 1980. Mr. Patel has submitted that in view of this gross delay on the part of the applicants, the respondents have suffered considerable hardship. In view of the second determination proceedings the respondents have not collected any general sales tax on "Jai Kajal", after the said decision and they have also no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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