State of Gujarat Vs. Prakash Trading
Co. Ahmadabad  INSC 176 (22 August 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION: 1973 AIR 960 1973 SCR (1) 918 1972
SCC (2) 689
Bombay Sales Tax Act, (51 of 1959) as amended
by Gujarat Act 25 of 1962, Sch. C. entry 28 and Sch, E, entry 21A-Liquid soap,
tooth paste and tooth brush whether toilet articles.
Entry 28 of Schedule C of the Bombay Sales
Tax Act, 1959, as amended by the Gujarat Act. 1962, pertains to soaps. Entry
21A of Schedule E deals with toilet articles excluding soap as specified in
Entry 28 in Schedule C. and Entry 22 of Schedule E is a residuary entry
relating to all goods other than those specified from time to time in the
Schedules and in the preceding entries.
On a reference under s. 61 of the Act, the
High Court held that Colgate tooth paste and Colgate tooth brush were not
toilet articles falling under Entry 21A but were covered by the residuary Entry
22; and that Palmolive Shampoo was soap within the meaning of Entry 28 of
In appeal to this Court,
HELD : (1) Colgate tooth paste and brush are
toilet articles under Entry 21A, Sch.E.
(a) in Sarin Chemical Laboratory v.,
Commissioner of Sales Tax, U.P. (1970) 26 S.T.C. 339 (SC), this Court came to
the conclusion that tooth powder was a toilet requisite.
Moreover, this Court by approving in Sarin
Chemical Laboratory Case the decision of the Bombay High Court in Commissioner
of Sales Tax v., Vicco Laboratories (1968) 22 S.T.C. 169, approved the view
that for the purpose of Bombay, Sales-Tax Act also dental powder is a toilet
article. The reasoning given by this Court in respect of tooth powder in Sarin
Chemical Laboratory's case holds equally good for tooth paste. [920F; 921D-F]
(b) The dictionary meaning of the word 'toilet' as "an act or process of
cleansing one's person" shows that a tooth brush, which is meant for
cleansing one's teeth, is also a toilet article. If a tooth brush is in fact
used for cleansing one's teeth it must be held to be an article of toilet even
teeth may also be cleansed without the use of a tooth brush. [920G-H;921F-G]
(2) Shampoo is a kind of liquid soap. It has all the ingredients of a soap
though the proportion of ingredient differs from those of a soap in the form of
a cake. But that fact would not alter the basic character of shampoo and take
it out of the category of soaps. The High Court was therefore right in holding
that the Shampoo falls under Entry 28, Schedule C. [922C-D]
CIVIL APPELLATE JURISDICTION : C.A. No. 37 of
Appeal by special leave from the judgment and
order dated July 3, 1968 of the Gujarat High Court in Sales Tax Reference No. 3
919 M. C. Bhandare and S. P. Nayar, for the
M. C. Chagla and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Khanna, J. This appeal by special leave is directed against the judgment of
Gujarat High Court in a reference made to it under section 61 of the Bombay
Sales Tax Act, 1959 (Bombay Act 51 of 1959) as amended by the Bombay Sales Tax
(Gujarat Amendment) Act, 1962 (Gujarat Act 25 of 1962) (hereinafter referred to
as the Act).
The respondent made an application under
section 52 of the Act to the Deputy Commissioner of Sales Tax for determination
of the rate of tax payable on sale of five articles, including Palmolive
shampoo, large size, Colgate tooth paste, giant size and Colgate tooth brush
for adult use. It was urged by the respondent before the Deputy Commissioner
that Palmolive shampoo was a kind of liquid soap and was covered by entry 28 of
schedule C to the Act.
As regards Colgate dental paste and Colgate
tooth brush, the respondent submitted that those were articles meant for
cleansing teeth and were not toilet articles. These contentions were repelled
by the Deputy Commissioner, who held that the aforesaid three articles were
toilet articles within the meaning of entry 21A of schedule E to the Act and
liable to tax accordingly. The Gujarat Sales Tax Tribunal on appeal took the
same view as had been taken by the Deputy Commissioner. On application filed by
the respondent, the following two questions were referred by the Tribunal to
the High Court:
"1. Whether on the facts and in the
circumstances of the case Palmolive Shampoo (Large Size) sold under Bill No.
505 dated July 15, 1964 is a toilet article within the meaning of Entry 21A of
Schedule E or is soap within the meaning of Entry 28 of Schedule C or is
covered by Entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 and liable
to tax accordingly.
2. Whether on the facts and in the
circumstances of the case (1) Colgate Tooth Paste and (2) Colgate Tooth Brush
sold under Bill No. 5'05 dated July 15, 1964 are toilet articles within the
meaning of Entry 21A of Schedule E or are covered by Entry 22 of Schedule E to
the Bombay Sales Tax Act, 1959 and liable to tax accordingly".
920 The answer of the High Court on the first
question was that Palmolive shampoo was not a toilet article within the meaning
of entry 21A of schedule E to the Act but was scrap within the meaning of entry
28 of schedule C and was liable to be taxed accordingly. As regards question
No. 2, the answer of the High ,Court was that Colgate tooth brush and Colgate
tooth paste were not toilet articles falling in entry 21A of schedule E but were
covered by the residuary entry 22 of schedule E and were liable to-be taxed
In appeal in this Court Mr. Bhandare on
behalf of the appellant has argued that all the three articles in question,
namely, Palmolive shampoo, Colgate tooth paste and Colgate tooth brush are
toilet articles as mentioned in entry 21A of schedule E to the Act. As against
that Mr. Chagla on behalf of the respondent has canvassed for the correctness
of the view of the High Court.
We may at this stage refer to the three entries
with which we are concerned. Entry 28 of schedule C to the Act pertains to
soaps. Entry 21A of schedule E to the Act deals with the following goods:
21A. Toilet articles including hair cream and
hair ionic; and perfumes, depilatories and cosmetics (except soap as specified
in entry 28 in schedule C and hair oil as specified in entry 7 of this
schedule)." Entry 22 is a residuary entry and relates to "all goods
other than those specified from time to time in schedules A, B, C and D in the
preceding entries." So far as Colgate tooth paste is concerned, we find
that the matter is concluded by a decision of this Court in the case of Sarin
Chemical Laboratory v. Commissioner of Sales Tax, U.P.(1). It was held in that
case that tooth powder is a toilet requisite and was liable to sales tax as
Reference in this connection was made to the
dictionary meaning of the words " cosmetic", "toilet" and
"Cosmetic", according to Webster's
International Dictionary, is "a preparation to beautify or alter
appearance of the body or for cleansing, coloring, conditioning or protecting
skin, hair, nails, eyes or teeth". The same dictionary gives the meaning
of the expression "toilet" as "an act or process of dressing,
especially formerly of dressing hair and now usually cleansing and grooming of
"Toiletry" according to the
dictionary, is "an article or preparation used in making one's toilet such
as soap, lotion, cosmetic, tooth-paste, (1)  26 S.T.C. 339.
921 shaving cream, cologne etc." It was
further observed by this Court that according to the dictionary meaning, tooth
powder was regarded both as an item of cosmetic and toilet and that in common
parlance, tooth powder was considered to be an article of toilet. As such, the
Court came to the conclusion that tooth powder was a toilet requisite. The
reasoning given by this Court in respect of tooth powder in the above cited
case, in our opinion, holds equally good for tooth paste. Likewise, the
dictionary meaning of the word "toilet" relied upon in the above case
"as an act or process of cleansing of one's person" shows that a
tooth brush which is meant for cleansing one's teeth is a toilet article.
Mr. Chagla has tried to distinguish the case
of Sarin Chemical Laboratory (supra) on the ground that was a case under the
U.P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax
Act. This submission is clearly untenable, because we are concerned with the
concept of a toilet article as understood in common parlance. Neither the
Bombay Sales Tax Act nor the U.P. Sales Tax Act contained any special
definition of the toilet articles and, as such, the reasoning in the case of
Sarin Chemical Laboratory (supra) cannot be held to relate only to cases under
the U.P. Sales Tax Act. Apart from that, we find that in the case of Sarin
Chemical Laboratory (supra) this Court approved of the decision of the Bombay
High Court in Commissioner of Sales Tax v. Vicco Laboratories (1). In the last
mentioned case it was held by the Bombay High Court that Vicco Vajradanti
dentifrice in the form of a powder used for cleansing teeth was a toilet
article. It would, therefore, follow that this Court has set its seal of
approval on the view that for the Bombay Sales Tax Act also, dental powder used
for cleansing of tooth is a toilet article.
We are also unable to accede to the
submission of Mr. Chagla that as tooth can also be cleansed without the use of
tooth brush, the same is not a toilet article. The question with which we are
concerned is not whether the use of tooth brush can be dispensed with, but
whether it is actually used for the purpose of cleansing one's teeth. If the
tooth brush is, in fact, used for cleansing one's, teeth, the same must be held
to be an article of toilet.
The view taken by the High Court regarding
shampoo that it constitutes soap, in our opinion, is well founded. The High
Court in this respect has referred to the following passage in the Encyclopedia
of Chemical Technology:
". The soaps used for shampooing the
hair are essentially the same as those described under "soap".
(1) 22 S.L.C. 169.
922 See Cosmetics Vol. 6 P. 550 soap). They
are available in several forms; bar, cake,.
liquid, powder (or granulles) and jolly.
Although there will 'undoubtedly always be
numbers of individuals who will wash their hair with any cake of soap that may
be at hand, the prepared liquid shampoos have rapidly risen to first place in
the retail trade. The bars and cakes are shoved down, the granules are
dissolved and the jollies are diluted, to prepare liquid shampoo of the desired
concentration...." The High Court concluded from the above that Palmolive
shampoo was soap covered by entry 28 of schedule C to the Act. We agree with
the High Court in this respect and are of the' opinion that shampoo is a kind
of liquid soap. It has all the essential ingredients of a soap. It may be that
the proportion of the ingredients of the liquid soap differ from those of a
soap in the form of a cake but that fact would not alter the basic character of
shampoo and take it out of the category of soaps.
As a result of the above, we partly accept
the appeal and set aside the judgment of the High Court in so far as it relates
to tooth paste and tooth brush. Both of them, in our opinion, are toilet
articles within the meaning of entry 21A of schedule E to the, Act. We,
however, uphold the judgment of the High Court in so far as the High Court has'
held that shampoo is soap within the meaning of entry 28 of schedule C to the
Act. In view of the partial 'success of each party, we leave the parties to
bear their own costs of this Court as well as in the High Court.