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TMI Blog1989 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... ries, tooth-powder, tooth-paste and tooth brushes." Before this amendment which came into force from July 1, 1985, the words "scents and perfumes" were not there. Even after the amendment, the petitioners have been paying tax on the sale of agarbathies as general goods at 5 per cent only. While so, the Commercial Tax Officers provisionally taxed them at 10 per cent purporting to be as provided under item 36 of the First Schedule referred to above. They also issued notices to the petitioners proposing to provisionally tax the sale of agarbathies at 10 per cent for the month of February, 1986. Apprehending that the respondent (Commercial Tax Officer) is likely to issue similar notices for each month, the petitioners have filed these writ petitions. It is submitted that agarbathies which are called as incense sticks are used mostly to keep the atmosphere fragrant and are used normally for religious purposes by persons of all religions and they do not come under the category of "scents and perfumes" used in item 36 of the First Schedule which has to be read in the context of the main entry, viz., cosmetics and toilet preparations and applying the principle of ejusdem generis, the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nglish Dictionary, observed: "The word 'perfume' originates from the word 'fumare' which means to 'smoke' or to emit vapour given off by some burning substance. In Encyclopaedia Britannica, Volume 17, 1965 Edition, at page 505, it is similarly pointed out that the literal meaning of the word 'incense' is the same as 'perfume' but 'perfume' has later on acquired an extended meaning so as to include anything sweet from smoking incense to fragrance of flowers." Their Lordships of the Supreme Court held that dhoop-battis fall within the category of perfume. In Kamaru Zuman Khan v. State of Orissa [1981] 47 STC 22, a Division Bench of the Orissa High Court consisting of Ranganath Misra, J. (as he then was) and K.B. Panda, J., following the judgment of Commissioner of Sales Tax v. Indian Herbs Research and Supply Co. [1970] 25 STC 151 (SC) held that agarbathies can be taxed as an article of perfumery. The Bench observed as follows: "The Supreme Court decision directly dealt with this question. Whether 'perfume' in its ordinary sense would cover dhoop and dhoopbatti was the question for consideration and the learned Judges held that dhoop and dhoop-batti fell within the category of 'p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his declaration only in respect of luxury goods, and that the decision of the Supreme Court referred to above is of no assistance. The learned counsel for the petitioners submits that the same principle should be applied to the instant case also. We are unable to agree. No doubt, the decision in Assessing Authority v. Amir Chand Om Parkash [1974] 33 STC 120 (P H) deals with a case of agarbathies, but there having regard to the language of section 5 of the Punjab General Sales Tax Act, the Division Bench observed that there was no similar provision under the U.P. Sales Tax Act in respect of luxury goods. In this view of the matter, the Division Bench of the Punjab and Haryana High Court observed thus: "According to the proviso to sub-section (1) of section 5 of the Act, before any item can be subjected to the enhanced rate of sales tax, as given therein, it is not only necessary that it must be luxury goods but it must also be specified in the Schedule. Thus both these things are necessary. The Legislature included certain goods in Schedule A and in its wisdom delegated the power of adding to, or deleting from, that Schedule to the State Government, but this power has been circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yet another decision on which reliance was placed by the learned counsel for the petitioners, is that of a Division Bench of the Madras High Court in A. Boake Roberts and Co. (India) Ltd. v. Board of Revenue (C.T.) [1978] 42 STC 270. There also the Division Bench considered the meaning of the word "perfumes" and the question that fell for consideration was whether "synthetic essential oils" would fall within the item which deals with scents and perfumes, powders, snows, etc. The Division Bench ultimately held that synthetic essential oils do not come within the meaning of "perfumes". In arriving at such a conclusion it relied on the decision of a Division Bench of the Kerala High Court in Deputy Commissioner v. Jos Zachariah [1965] 16 STC 799 and quoted an extract from that decision which reads as follows: "By the application of the rule of ejusdem generis the expression 'toilet requisites' in entry 48 will have to be confined to items coming under the first category, that is, toilet preparations, like scents and perfumes, powders, snows, scented hair-oils, scented sticks, cosmetics and soaps." Having examined the ratio laid down in that case, we are of the view that that decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e." The learned counsel for the petitioners submits that applying the above principle and also applying the rule of ejusdem generis, it must be held that the word "perfumes" is in general and would apply to cosmetics and toilet preparations and not to agarbathies. We cannot accede to this contention in view of the direct decision of the Supreme Court in Commissioner of Sales Tax v. Indian Herbs Research and Supply Co. [1970] 25 STC 151. As already noted the Division Bench of the Orissa High Court in Kamaru Zuman Khan v. State of Orissa [1981] 47 STC 22, held that agarbathies come within the meaning of "perfume". The only other decision which dealt with agarbathies is Assessing Authority v. Amir Chand Om Parkash [1974] 33 STC 120. There the consideration was different in view of the classification of goods as found in the entry. In the instant case, the only simple question that we have to consider is whether agarbathies come within the meaning of "perfume" as included in item 36 of the First Schedule to the A.P. General Sales Tax Act. The Supreme Court has concluded this question. In the result, the writ petitions are dismissed with costs. Advocate's fees in each writ petition: R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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