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TMI Blog1990 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... in the First Schedule to the Kerala General Sales Tax Act, 1963 is the question posed in these writ petitions. 2.. Judicial decisions dealing with "perfume" in the context of different statutory schemes, have helped to focus the core question and to give due emphasis on the determinative factors for the ultimate decision. 3.. The availability of sandalwood in large forest tracts in Kerala, Karnataka and Tamil Nadu has fostered extensive trade, commerce and industry, whether it be in relation to the timber or its cut ends, the oil as extracted, of the perfume as made, or of the by-products where its fragrance predominates. Karnataka is noted not only for its extensive sandal forest wealth but also for its pioneering industrial projects in sandalwood. Smaller patches of sandalwood growth still survive in Kerala and Tamil Nadu. Transactions connected with the commodity have been subjected to taxing officers' watchful view. As far as Kerala is concerned, the question has arisen for the first time in relation to "sandalwood oil". 4.. One of the earliest decisions is that of the Madras High Court Mettur Sandalwood Oil Co. v. State of Madras [1965] 16 STC 9. The decision indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as the odoriferous element. 7.. The chemical properties of sandalwood oil were then enumerated. It vaporises at a high temperature which ranges between 285 to 290 C. The necessity for the use of a solvent like alcohol to make the resultant perfume volatile was adverted to. Sandalwood oil could serve only the purposes of the fixative and the odoriferous elements, in the making of a perfume. The court further observed: "It is also common experience that sandalwood oil as sold in the market does not vaporise readily, to serve the purpose of a common perfume. It has to be rubbed hard on the hand or some other part of the body so that the temperature can be raised by friction and better vaporisation takes place." One other significant factor was referred to in the judgment. The bulk of the sales was in large containers holding from 5 lbs. to 50 lbs. The intention in effecting such sales was to sell the oil only as a base for preparing perfumes and other articles. 8.. The book on "Our Tree Neighbours" also confirms the above attribute of sandalwood oil. It states: "The highly fragrant sandal oil is used in perfumery, soap-making and in medicine." The features and qualities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e perfumery industry to a greater or lesser extent. The characteristics of sandalwood oil referred to in the brochure on the marketing of sandalwood and its oil in India (Marketing series No. 128) referred to by you in your letter itself shows that it is a good vehicle only for high-class perfumes and its own value as a perfume is insignificant." 13.. The further discussion of the evidence as available in the case may usefully be extracted inasmuch as they give the basic data in relation to the characteristics and properties of sandalwood oil: "The evidence produced also shows that sandalwood oil is used in ayurvedic medicinal preparations. In modern medical preparations sandalwood has been replaced by sulpha drugs and other, antibiotics. In the light of this evidence it is not possible to come to a conclusion that sandalwood oil is itself a perfume though it is extensively used in the preparation of perfumes. Undoubtedly, both sandalwood and sandalwood oil have a delicate fragrance and are prized on that account. But everything possessing a delicate fragrance is not necessarily a perfume. Fresh flowers such as roses or jasmine, and spices such as cardamom or saffron for exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in Deputy Commissioner of Sales Tax v. Latheef [1988] 69 STC 29 at about the time, independently came to a similar conclusion in relation to agarbathi, long and narrow filament coated with a paste, which on burning will emit an agreeable odour, depending on the scent. Some are employing sandalwood dust and accordingly the smoke generated has that affinity in the odour emitted. 19.. The Supreme Court in Commissioner of Sales Tax v. Indian Herbs Research and Supply Co. [1970] 25 STC 151, had to consider the question whether "dhoop-bathi"-rounds made of amalgam of various articles including sandalwood particles-would come within the term "perfume" as employed in the U.P. Sales Tax Act, 1948. The entry read: "Scents and perfumes (in English) and Itra tatha suganthian (in Hindi)." 20.. Adverting to the argument that "dhoop-batti does not by itself emit in its natural state any agreeable odour", the Supreme Court held that "there is no warrant for restricting the meaning of the expression 'perfume' only to substances which emit fragrance in their natural state and not as including those which produce fragrance as a result of the application of heat or the application of some for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of distinction adopted by courts of law, has indeed played a revolutionary part in the evolution of law itself. Lord Diplock's decision in the House of Lords adverts to many relevant thoughts on that topic, and has indicated even the stress and strain placed on the art of distinguishing earlier decisions. Trained judicial minds should not permit perpetration of patently erroneous views, unnecessarily imagining a rub on the judicial discipline when really there is none. Judicial discipline is inviolable. (Only rarely one would come across Lord Atkin who would roar: "If this were the result of the authorities, I should consider the result a grave defect in the law............" as in Donoghue v. Stevenson [19321 AC 562.) However, it is not inconsistent with a necessary intellectual exercise when warranted by larger interests of justice. Such a right and bold approach had been adopted by a Bench of this Court even earlier, and in respect of the very same entry. Though a blindfold following of the Supreme Court decision might have induced this Court to hold that "agarbathi" also would fall within the purview of perfume, this Court came to a different conclusion. It placed emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce being construed as a perfume." The conjunction of the other words, however, made all the difference, according to that court. 25.. The earlier decision of the Madras High Court [1976] 38 STC 300 (Prakash Stores v. State of Tamil Nadu), with respect, did not attempt an incisive analysis of the Supreme Court decision. Nor did that decision assign the necessary stress and emphasis on the understanding of a term in the context and company of other words and terms. The arduous task was, however, undertaken in the later decision referred to above. 26.. In Boake Roberts and Co. (India) Ltd. v. Board of Revenue (Commercial Taxes) [1978] 42 STC 270, the Madras High Court steered clear of a collision course with the view taken by the Supreme Court, by a deft piloting. Govindan Nair, C.J., writing for the Bench, was at pains to parade the supportive factors in coming to a conclusion that jasmine essence was not perfume. The court had the advantage of viewing the article served in bottles and presented to the court for examination. The earlier decisions of the Madras High Court and of the Supreme Court were specifically referred to in the consideration of the question. The strong facto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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