TMI Blog1986 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in T.R.C. Nos. 37, 45 and 49 of 1978 by its order dated 2nd August, 1978, held: "The common question in all these tax revision cases, which arise out of a common order of the Sales Tax Appellate Tribunal, is whether tooth-paste, cream and hair oil come within the scope of entry 36 of the First Schedule to the Andhra Pradesh General Sales Tax Act. That entry shows that cosmetics and toilet preparations, namely, face powders, talcum powders, hair lotions, creams and pomades are taxable at the point of first sale in the State at 8 paise in a rupee. The Supreme Court in State of Gujarat v. Prakash Trading Co. [1972] 30 STC 348 (SC) has decided that tooth-paste and hair oil were toilet articles and were liable to tax only at the point of first sale in the State under entry No. 36. Therefore, the decision of the Appellate Tribunal is unexceptionable. We have already dismissed a tax revision case which has raised a similar point. These three tax revision cases are also accordingly dismissed." However, this Bench feels that the said order requires reconsideration for the following reasons. The order in the T.R.Cs. referred to above, was made while placing reliance on a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We think that the precise meaning of the words 'that is to say' must vary with the context. Where, as in Megh Raj's case AIR 1947 PC 72, the amplitude of legislative power to enact provisions with regard to "land" and rights over it was meant to be indicated, the expression was given a wide scope because it comes after the word 'land' and then followed 'rights over land' as an explanation of 'land'. Both were wide classes. The object of using them for subject-matter of legislation, was obviously, to lay down a wide power to legislate. But in the context of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression was apparently meant to exhaustively enumerate the kinds of goods on a given list. The purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sales. Otherwise the listing itself loses all meaning and would be without any purpose behind it." Inasmuch as the expressions "namely" and "that is to say" are similar and connote more or less the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t preparations. It means that the entry is an exhaustive enumeration of the items mentioned therein." The two expressions "including" on the one hand and "namely" on the other appear to lead to rather different interpretations and therefore, would lead to different conclusions. Hence, we feel that the order made by this Court in T.R.Cs., referred to above, requires reconsideration for which a Full Bench may have to be constituted and the whole be referred to it. In the circumstances we direct that the papers may be circulated to the Honourable the Chief justice for according appropriate orders. In pursuance of the abovesaid order of reference the petition came on for hearing before the Full Bench. S. Dasaratharama Reddy and S.R. Ashok (in W.P. No. 989 of 1981) and S. Krishna (in W.P. No. 5621 of 1980), for the petitioners. A. Venkata Ramana, Government Pleader, for the respondent. JUDGMENT The judgment of the Court was delivered by A. LAKSHMANA RAO, J.-In these two writ petitions the common question that arises for consideration is whether the goods "tooth-paste" and "toothbrushes" were subject to levy of single point sales tax under entry 36 of the First Schedule t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes." That entry was further amended with effect from 20th September, 1983 by Ordinance No. 19 of 1983, which was later replaced by Act No. 11 of 1984 in the following terms: "Cosmetics and toilet preparations, including face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes." Once again that entry underwent an amendment with effect from 1st July, 1985, effected by the A.P. General Sales Tax (Amendment) Act 18 of 1985. So, as at present, entry 36 is as follows: "Cosmetics and toilet preparations, including scents, perfumes, face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and toothbrushes. " On the basis of the word "namely" used in entry 36, the absence of the words "tooth-paste" and "tooth-brushes" in that entry prior to 1st September, 1976, from which date tooth-paste and tooth-brushes were included in entry 36 and the subsequent amendments of that entry in the years 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'namely' can only be restrictive and can be neither illustrative nor expansive." In Commissioner of Income-tax v. Arasan Fertilisers (P.) Limited [1978] 114 ITR 802 a Division Bench of the Madras High Court construed the word "namely" occurring in item 13 of the Fifth Schedule to the Income-tax Act, 1961 which reads as under: "(13) Fertilisers, namely, ammonium sulphate, ammonium sulphate nitrate (double salt), ammonium nitrate, calcium ammonium nitrate (nitrolime stone), ammonium chloride, super phosphate, urea and complex fertilisers of synthetic origin containing both nitrogen and phosphorus, such as ammonium phosphates, ammonium sulphate phosphate and ammonium nitro phosphate." and held "that by the use of the word 'namely' in item 13, the legislature has restricted the application to those enumerated items and since the bonemeal manufactured by the assessee is not one of those enumerated items, the assessee is not entitled to the rebate claimed. " Following that decision, another Division Bench of that court-reiterated in a case arising under the provisions of the Tamil Nadu General Sales Tax Act, 1959 that the meaning of the word "namely" can only be restrictiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the entries in the First Schedule itself, the legislature bore in mind the distinction between the two words "namely" and "including" and used deliberately the word "including" in some of the entries such as 11, 14, 26, 48, etc. In entry 36 itself the word "namely" was replaced in the year 1983 by the word including. Thus, where it was intended that the enumerated goods specified after the general expression were to be only illustrative but not exhaustive, the word "including" was used and where the intention of the legislature was that the enumerated commodities should be exhaustive, they used the word "namely" or "that is to say". In those circumstances, we have no hesitation in holding that the word "namely" followed by the enumerated commodities was incorporated in the entry to clearly convey the intention of the legislature that the enumerated list of goods was exhaustive and not illustrative. In other words, the general expression "cosmetics and toilet preparations" followed by the word "namely" mentioned in item 36 was intended to be confined in its application only to those specified commodities enumerated in that entry after the word "namely". Then it has to be seen wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression that precedes that word and the enumerated items that follow that word are exhaustive. So, that decision, having regard to the expressions used in entry 21A of Schedule E to the Bombay Sales Tax Act, cannot be said to be applicable to the facts of this case. The Division Bench of this Court dismissed T.R.C. Nos. 37, 45 and 49 of 1978 on 2nd August, 1978 at the admission stage, holding that tooth-paste was liable to be taxed under entry 36. There was no discussion in the judgment as to the meaning of the word "namely" used in entry 36. The learned judges merely referred to the decision of the Supreme Court in State of Gujarat v. Prakash Trading Co. [1972] 30 STC 348 (SC) and stated that in that case tooth-paste was held to be a toilet article and was thus subject to tax under entry 36. With great respect, we hold that the decision of the Division Bench of this Court is not correct. Another Division Bench of this Court took the view in Godrej Soaps Ltd. v. State of A.P. [1983] 53 STC 376 that "Entry 36 names certain items as cosmetics and toilet preparations. It means that the entry is an exhaustive enumeration of the items mentioned therein." Even the Commercial Taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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