1. This is a reference under section 34 of the Bombay Sales Tax Act, 1953, and the question for decision that arises in this reference is whether two articles described as Badshahi soap and Badshahi powder are liable to special sales tax under sub-section (1) of section 6 of the Bombay Sales Tax Act, 1946, or are liable only to general sales tax.
2. Now, turning to section 6, sub-section (1)(a) provides for a general tax at the rate of one half of an anna in a rupee and this applies to sales of goods excluding the goods specified in Schedule I, while sub-clause (b) provides for a special tax at the rate of one anna in the rupee and this applies to sales of goods specified in Schedule I. The question, therefore, to determine is whether Badshahi soap and Badshahi powder are among the goods specified in Schedule I. Turning to Schedule I, the relevant entry is No. 6 which is as follows :-
'Perfumery, cosmetic and toilet articles, except soaps and other articles as may be specified by the State Government by notification in the official Gazette'.
3. It is said on behalf of the taxing authorities that these are toilet articles. This itself is denied by the applicants but they have further urged that assuming that these are toilet articles they are soaps. The first question, therefore, that we have to determine is whether these are toilet articles, and the second question we will have to determine is if they are toilet articles, are they soaps
4. Now, the composition of these articles, as stated by the applicants is 'Barium sulphide combined with the whiting powder and vaseline' and the properties of these articles are depilatory only. Considering the property of the articles, the question is whether those are or are not toilet articles. The words 'toilet articles' include within its scope a large variety of articles and the category may not be capable to easy definition although in a given case it may not be difficult to see whether the article falls within that category or not. Turning to the definition of the word 'toilet' in Webster's New International Dictionary the meaning of toilet is given to be 'act or process of dressing; esp., formerly, of dressing the hair, now, usually, a cleansing and grooming of one's person'. There can be in our opinion little doubt that a depilatory is used for the purpose of cleansing and grooming one's person, therefore, it is a toilet article.
5. The next question is whether these articles are soaps. One of them is actually called a soap and is sold in the market by the name of Badshahi soap. But it is necessary to determine whether it is a soap within the exception to entry 6 in Schedule I. What a manufacturer calls an article does not determine its true character or his liability to tax under the Sales Tax Act; and it is only the character of the article that attracts the tax and not the name by which it is known in the market. The definition of 'soap' given again in Webster's Dictionary is 'a cleansing agent, made usually by action of alkali on fat or fat acids and consisting essentially of sodium or potassium salts of fat acids'. One may say that in a sense the two articles with which we are dealing are cleansing agents, but that process of cleansing is not brought about by the action of alkali on fat.
6. Mr. Shah says that vaseline is a fat or a fatty substance; but he has not been able to point out any authority for the proposition that vaseline is a fat. On the other hand, Webster's Dictionary says that vaseline is a trade mark for petroleum or certain other petroleum products. It is a matter of common knowledge that Barium sulphide is an alkali, the absence of the fat in these preparations cannot make either of them a cleansing agent by virtue of the action of alkali on fat. In our opinion, therefore, they are not soaps and are not taken out of the category of toilet preparations enumerated in entry 6 of Schedule I and are therefore liable to special sales tax.
7. Our answers to the questions referred to us are :
(1) In the affirmative.
(2) in the negative.
Applications to pay costs.
Reference answered accordingly.