TMI Blog1970 (11) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... it was stated on behalf of the assessee-firm that Nycil powder is used as a medicated powder for many external skin and other diseases and was, therefore, not a toilet article. Along with the application, the assesseefirm produced a sample bill dated 23rd April, 1968, as well as a copy of the trade pamphlet issued by the manufacturer and a sample bottle .of the article in question. Before the Deputy Commissioner of Sales Tax, who heard the application, it was contended on behalf of the assessee-firm that Nycil powder is neither a toilet article nor a cosmetic within the meaning of entry 21A of Schedule E but it was a medicine within the meaning of entry 13 of Schedule C. In the alternative, it was contended on behalf of the assessee that Nycil powder would fall within the ambit of the residuary entry 22 of Schedule E to the Act. The Deputy Commissioner of Sales Tax, by his judgment and order dated 8th April, 1969, held that Nycil powder was a toilet article within the meaning of entry 21A of Schedule E and was liable to tax at the rate specified against the said entry in Schedule E. The Deputy Commissioner of Sales Tax in his judgment observed as follows: "In the instant case it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trading Co. v. The State of Gujarat1969] 24 S.T.C 106., then proceeded to consider the question whether Nycil powder was a toilet article, i.e., an article which could be used for the purpose of grooming a person by beautifying his appearance. The Tribunal observed that Nycil powder "can be used and is presumably used for the purpose of grooming a person by beautifying his appearance". The Tribunal took the view that Nycil powder was, therefore, broadly speaking a toilet article though it contained certain ingredients which have preventive and curative effect on the skin. The Tribunal further held that merely because the powder contained chlorphenesin in the proportion of 1 per cent, of the total ingredients, which substance had a preventive and curative effect on the skin, as also certain other antiseptic substances in the proportion of 32 per cent, of the total ingredients, it would not mean that Nycil powder is not a toilet article. In this view of the matter, the Tribunal held that Nycil powder is a toilet article within the meaning of entry 21A of Schedule E. As regards the contention of the assessee-firm that Nycil powder was a medicine within the meaning of entry 13 of Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the relevant portions of the said two entries. SCHEDULE C Sr. No. Description of goods. Rate of sales tax. Rate of purchase tax. 1 2 3 4 13. (1) Drugs and medicines (other than those specified in entry 69 in this Schedule). Three naye paise in the rupee. Three naye paise in the rupee. (2) Vitaminised infant milk food sold in sealedcontainers. Three naye paise in the rupee. Three naye paise in the rupee, SCHEDULE E Sr. No. Description of goods. Rate of sales tax. Rate of general sales tax. 1 2 3 4 21A Toilet articles including hair cream and hair tonic, and perfumes, depilatories and cosmetics (except soap as specified in entry 28 in Schedule C [and hair combs as specified in entry 3-D of this Schedule] and hair-oil as specified in entry 7 of this Schedule). Ten naye paise in the rupee Three naye paise in the rupee, Entry 21A of Schedule E has come up twice for interpretation before this court and it may be useful at this stage to refer to the ratio of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for making one's toilet, it was held that the said article was not a toilet article within the meaning of the said entry. In Prakash Trading Co. v. State of Gujarat[1969] 24 S.T.C. 106., the same Division Bench was concerned with the question whether Colgate tooth-paste and 'Colgate tooth-brush as well as Palmolive shampoo were toilet articles within the meaning of the said entry. The Division Bench again interpreted the expression "toilet articles" in the context and collocation of the words found in the said entry and, applying the principle of noscitur a sociis, held that having regard to the fact that the expression "toilet articles" was used in close association with the word "cosmetics" and further that certain other articles which were of direct use in the process of grooming a man were specifically included or excluded from the ambit of the said entry "the words 'toilet articles' would have a restricted meaning as those articles which are of direct use in the process of toilet, that is, the process of grooming a person by beautifying his appearance. The process of toilet would not amount to mere cleansing of a person, for giving any wider meaning." We can do no better tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ointment is recommended for the treatment of prickly heat and dhobie itch and active skin protection during ringworms and other fungicidal infections. Nycil powder is particularly suitable for the initial treatment of acute mycotic infection as it absorbs in addition to exercising its fungicidal action. (4) The ingredients of Nycil powder are as under: (i) Chlorphenesin B.P. 1% (ii) Zinc Oxide I.P. 16% (iii) Boric Acid I. P. 6% (iv) Starch I.P. 51% (v) Talc to 100% The above composition of Nycil powder shows that it contains medicinal articles to the extent of 33 per cent. (5) On the sample bottle of Nycil powder, produced before the lower authorities, on its one side the following was found printed: "Nycil for Prickly Heat and Active Skin Protection". On the other side, the following was found to have been printed: "Nycil contains chlorphenesin the antibacterial and antifungal agent. It actively prevents prickly heat and protects the skin from sores, dhobie itch, and athlete's foot." The formula of the Nycil powder is also printed on the container. The Tribunal has made the following pertinent observations as regards the container of the Nycil powder: "It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributes and property of Nycil powder as well as to the advertised use for which it is intended, it would be difficult to hold that Nycil powder would or could ordinarily be used for the purpose of grooming a person by beautifying his appearance. The Tribunal in para. 9 of its judgment has proceeded on the assumption that the powder "can be used and is presumably used for the purpose of grooming a person by beautifying his appearance." Mr. B.R. Shah, appearing on behalf of the revenue, placed a strong reliance on these observations of the Tribunal and contended that they amount to a finding that Nycil powder is in fact used as a toilet powder. We are unable to read into these observations a finding of the Tribunal to the effect canvassed for on behalf of the revenue. We find that the Tribunal has merely proceeded on an assumption that Nycil powder was capable of being used and was presumably used as a toilet powder and its observations based on such assumption do not amount to a finding of fact based on appreciation of evidence. True it is that the entire reasoning and final decision of the Tribunal that Nycil powder is a toilet article is founded on this assumption but that cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hair, to promote luxuriant growth of hair and to prevent dandruff and falling hair and that the appearance of the person using it is undoubtedly improved. In view of this finding, the court there held that hair-oil was a toilet article. The court, however, further observed that, that being so, there can be no justification for treating it as a medicinal preparation merely because the assessee manufactured the oil following a formula given in an Ayurvedic treatise. In that case, as pointed out above, the court had independently first reached the conclusion that the article in question had the effect of grooming a person and beautifying his appearance because it had the quality of acting as a hair tonic, preventing dandruff, falling hair and baldness. The court, therefore, rightly observed with respect that merely on account of the fact that it was made according to Ayurvedic formula, the article in question did not cease to be article meant for beautifying the appearance. In the present case, on the view that we are taking, it is difficult to hold that Nycil powder can be used for the purposes of grooming a person by beautifying his appearance. Its essential property and qualit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two distinct meanings and that in its ordinary sense as applied to human ailments, it means something which is administered either internally or externally in the treatment of disease or the relief of sickness. It is now well settled that the names of articles, sales as well as purchases of which are liable to be taxed, given in a statute, unless defined in the statute, must be construed not in a technical sense but as understood in common parlance: vide Ramavatar Budhaiprasad v. Assistant Sales Tax Officer[1961] 12 S.T.C. 286 (S.C.). The word "medicine" appearing in entry 13, Schedule C, will therefore have to be interpreted not in a technical sense but as understood in common parlance. In its popular sense, "medicine" is a remedial agent, a substance which may be sold in various forms such as liquid, tablets, capsules or powder, which is administered in the treatment of disease and which has the property of curing or' remedying disease. This meaning also accords with the dictionary meaning to which we have just referred above. If this is the true meaning of "medicine", in popular parlance, many articles which may not be medicine technically or strictly so-called, would be covere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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