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TMI Blog1973 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured in the form of two liquids - 'Ensola Conc 1' 'Ensola Conc 2' - which are to be mixed in equal quantities and the mixture is applied to the hair externally to give the hair a black colour. The composition of each is as follows : "Ensola Conc 1" is in the form of clear yellow coloured liquid and is an acqueous solution of lead salts, glycerine and perfumery material while 'Ensola Conc 2' is colourless clear liquid and is an aqueous solution of Sodium Thiosulphate, glycerine and perfumery materials and the same is undoubtedly a hair darkener. Since the commencement of its production the petitioners have been selling the said product as hair darkener, the literature supplied along with the same indicating the same to be a hair dye. 3.Under the Finance Act, 1961 (Act No. 14 of 1961) by Sec. 13 thereof the First Schedule to the Central Excises and Salt Act, 1944 was amended and Item No. 14F was added in the First Schedule. The said Item No. 14F reads as follows :- "COSMETICS TOILET PREPARATIONS NOT CONTAINING ALCOHOL OR OPIUM, INDIAN HEMP, OR OTHER NARCOTIC DRUGS OR NARCOTICS NAMELY :- Face Cream and snow Face Powder Talcum Powder Hair Lotion, Cream and Pomad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector passed an Order dated 3rd June, 1964 confirming the view of the Assistant Collector, Central Excise, Bombay and dismissed the appeal. The Collector gave a lengthy and reasoned order while dismissing the appeal. On 25th November, 1964 the Petitioners preferred a revision to the Central Government. By letter of the same date the petitioners also sought personal hearing, in as much as, complicated questions were involved and various texts by reference to which the questions had to be decided were required to be cited and discussed but it appears that the personal haring was refused. By their advocate's letter dated 16th January, 1965 the petitioners put on record their disappointment at the Government's decision not to grant personal hearing at the revisional stage and took an opportunity of pointing out to the Government that the Director of Drugs and Control Administration, Maharashtra State, had classified the product as a hair dye and as such the Collector's decision that their product was a hair lotion and therefore chargeable to duty under Tariff Item No. 14F should be set aside. The Central Government by an order dated 10th January, 1966 dismissed the Revisional Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id product reason of its composition, ingredients and the use to which it put, could by no stretch of imagination be classified as a Hair Lotion and should have been classified as a Hair Dye not liable to excise duty at all and on this aspect all the authorities had gone wrong and therefore in view of the material that was available on record this Court should come to the conclusion that the product was not chargeable to excise duty. We must state here that when Mr. Joshi mentioned these two points at the commencement of his argument, we distinctly asked him as to whether he could like us to deal with the first point which he wanted to urge or whether he wants to press a decision on the second aspect of the matter on merits in which case the first point would not survive and Mr. Joshi categorically stated that he really wanted us to decide the second aspect which really goes to the root of the matter and wanted a decision of this Court on merits of the question rather than on the first point which would merely entail dragging on the proceedings further. In view of this position which Mr. Joshi clarified to us, we called upon Mr. Joshi to argue the matter on the merits of the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ury and zinc etc. This particular product of the Appellants contains lead acetate and sodium thiosulphate. It also contains as much as 90% of water and the rest is medicaments. As such it is clear that Ensola which is nothing else but 90% of water and the rest other medicaments, is nothing else but a hair lotion although it serves the purpose of darkening the hair. As such I agree with the Chief Chemists findings that Ensola is a hair lotion and is correctly liable to duty under item 14-F(iv) of the Central Excise Tariff." 8.Mr. Joshi for the appellants-petitioners has challenged the above reasoning, principally on the ground that if we look at the composition and the ingredients of the petitioners' product viz. 'Ensola Conc' it would appear clear that apart from 90% of water and other perfumery materials, the main ingredients were Lead acetate and Sodium thiosulphate and it is these latter two ingredients which had the property of imparting colour to the hair when the product was applied to the human hair and therefore these two organic ingredients, viz. Lead acetate and Sodium thiosulphate have all along been regarded as dye or hair dyes which had the property of imparting such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. He, therefore, contended that having regard to the composition and the ingredients of the petitioners' product it could never be classified as Hair Lotion and therefore the decision of the Central Excise authorities as well as the Central Government deserves to be quashed or set aside. 9.In our view, it is not possible to accept any of these submissions of Mr. Joshi for more than one reason. In the first place, it is well settled that when a Court is dealing with the entries appearing in the Statutes like Central Excise Act or Sales Tax Act etc. the entries appearing in such Statutes are to be understood not in their technical or scientific or laboratory sense but they are to be understood in commercial sense, that is, in the sense in which the persons dealing with those items in the market understand them and it must be stated very clearly at this stage that from this aspect of the matter no material whatsoever was placed by the Petitioners either before the Central Excise authorities or before the Central Government or before the trial Court when they preferred their petition for the desired writs. From the entire material on record it seems to us very clear that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter 'Hair Preparations' had described Hair Lotions and Tonics as follows : "Hair Lotions and Tonics are frequently the subject of a jest, as they are expected to make hair grow on guaranteed specific, they undoubtedly have the baldest heads. While they may not be a stimulating effect upon the hair follicles, and the friction produced either by the fingers or by a fairly stiff brush is not by any means a negligible factor contributing to their efficacy." Then follows the list of ingredients of various types. The above passage makes it very clear that hair lotion and tonics are normally expected to make hair grow on the baldest heads. In other words, they could be regarded as hair restorer or hair grower and for the preparation of which the ingredients have been detailed by him in the list which follows the above quoted passage. Under the chapter 'Hair Dyes' at page 94 of the Book the same learned author has described Hair Dyes as follows : "The modern method of applying lead to the hair is a little more scientific and free from the risk of plumbism. The success of the application depends upon the fresh preparation of lead sulphide in clear solution. This is effected as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mences at page 357 and in this sub-chapter dealing with 'Hair Lotions' we find at page 362 a sub-head 'Sulphur Hair Restorers' and under the sub-heading formulas which have lead acetate and sodium thiosulphate as their ingredients have also been mentioned and what is more under formula IV under the sub-head sulphur is mentioned as Lotion Plumbiet Sulphuris. In view of the above, it seems to us clear that even in the scientific text books and technological books like Pharmaceutical Formulas, Formulas which have lead acetate and sodium thiosulphate as their ingredients have been considered under the general heading 'Lotion' and sub-heading 'Hair Lotion'. It is true, as Mr. Joshi has pointed out, in Vol. II of Pharmaceutical Formulas the formulas have been considered a little differently. But as has been pointed out by the Collector of Central Excise, in the preface to the 11th Edition it has been stated that the Pharmaceutical Formulas have been divided into two volumes, the first comprising formulas official and non-official of essentially pharmaceutical character and the second the numerous classes of domestic architectural photographic and other recipes associated with the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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