Smt. Sujata V. Manohar, J.
1. The respondents, M/s. Western India Chemical Company are registered dealers under the Bombay Sales Tax Act, 1959. They manufacture various pharmaceutical products. They also manufacture a product known as 'Jai Kajal' which is a black paste to be applied to the eyes. The respondents made an application dated 26th August, 1969 to the Commissioner of Sales Tax under section 52 of the Bombay Sales Tax Act, 1959 together with a copy of the sale bill dated 20th August, 1969 for a determination as to whether the said transaction was covered by entry 19 of Schedule E or whether it was covered by entry 22 of Schedule E. The respondents produced before the Commissioner several certificates from practitioners of ayurvedic medicine to show that 'Jai Kajal' was a medicine and not a cosmetic. By his order dated 18th July, 1970 the Commissioner held that 'Jai Kajal' was a cosmetic falling under entry 19 of Schedule E.
2. Being aggrieved by the order of the Commissioner, the respondents filed an appeal before the Tribunal. The Tribunal by its judgment dated 15th July, 1971 held that 'Jai Kajal' was not a cosmetic and it fell under the residuary entry 22 of Schedule E to the Act. In respect of this determination the following question has been referred to us at the instance of the Sales Tax Department :
'Whether the Tribunal was correct in law in holding that 'Jai Kajal' sold by the opponent under their bill dated 20th August, 1969 is not a cosmetic and therefore is not covered by entry 19 of Schedule E but is covered by the residuary entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 ?'
3. In view of the question that is posed before us we have to consider whether 'Jai Kajal' can be treated as a cosmetic falling under entry 19 of Schedule E. If not, it is an accepted position that it will fall under the residuary entry 22 of Schedule E. Entry 19 of Schedule E at the relevant time covered 'perfumes, depilatories and cosmetics (except soap and articles specified in entry 7 in this Schedule)'. Now, a cosmetic is a preparation which is primarily used for the beautification of the body (see in this connection Commissioner of Sales Tax, Maharashtra State, Bombay v. Gordhandas Tokersey reported in  52 STC 381. There are of course, a number of cosmetics which are advertised as possessing almost magical qualities of transforming an ugly duckling into a swan. But whether they can therefore be classified as 'medicines' is a different matter. And fortunately we are not called upon to decide whether 'Jai Kajal' is medicine. We have merely to decide whether it is a cosmetic preparation. If not, it falls under the residuary entry.
4. 'Jai Kajal' is applied to the eyes. Is it applied for beautifying the eyes Opinion on this point may differ, for aesthetic tastes tend to vary greatly from person to person. Beauty is after all, in the eyes of the beholder. We cannot however, go into individual tastes on this point. We will first have to see whether in common parlance kajal is considered as a preparation used for the 'beautification' of eyes. Here, unfortunately, we have before us, a divided opinion. The Commissioner of Sales Tax felt that commonly this preparation is used as a part of make-up by the ladies. The Tribunal, however, felt that as far as common knowledge goes, kajal is used mainly for the health of the eyes. In the absence of any evidence, therefore, it would be difficult to draw any inferences on the basis of 'common' knowledge.
5. In the absence of any evidence of common knowledge we must go to the material which is on record. There are before us ten certificates given by practitioners of ayurvedic medicine including the Dean of the Faculty of Ayurvedic Medicine, University of Poona. Pandit Shiv Sharma and Vaidya B. P. Nanal whose certificates are produced are practitioners of ayurvedic medicine of considerable repute. All these certificates show that kajal containing camphor and bhimseni karpur or borneol has 'medicinal' properties and therapeutic value under the ayurvedic system. Kajal containing these ingredients is used to keep the eyes healthy. It is to improve the clarity of vision. Some of the certificates also state that the constituent ingredients camphor and bhimseni karpur are used for the treatment of eye diseases.
6. In the present case the kajal manufactured by the respondents contain the following ingredients :
(i) Coconut oil 23.36%(ii) Camphor 2.00%(iii) Borneol (Bhimseni Karpur) 0.80%(iv) Carbon black 5.84%(v) Wax and petroleum jelly 68.00%
In view of this composition of 'Jai Kajal', Vaidya Purushottam Laxman Lavgaonkar has considered 'Jai Kajal' manufactured by the respondents as a medicine for eye diseases.
7. In view of these certificates, it would appear that this particular variety of kajal is used for the health of the eyes. It is not for us to judge the scientific validity of the claim being made in respect of this kajal. We are only concerned with the reasons for which this particular variety of kajal is said to be used by the public. From the material on record it would seem that this particular variety of kajal is predominantly used for its alleged therapeutic qualities rather than for its cosmetic effect. In view of this material which is before us we are of the view that 'Jai Kajal' manufactured by the respondents will fall under the residuary entry 22 of Schedule E and not under entry 19 of Schedule E. We are not called upon to give any decision about other types of kajal.
8. In the present case there are certain other material facts which should also be noted because a strong reliance was placed on these facts by Mr. R. V. Patel, learned Advocate for the respondents, who submitted that we should decline to answer the question posed before us in view of these facts. The decision of the Tribunal in this case was delivered on 15th January, 1971. From this decision of the Tribunal the application made by the Commissioner of Sales Tax for a reference to this High Court was granted on 10th October, 1973. Before the Tribunal, learned Advocate appearing for the respondents (assessees) had submitted that he would file a separate application for the determination of the question whether 'Jai Kajal' should be considered as a medicine falling under entry 38 of the notification dated 14th August, 1965 issued under section 41 of the Bombay Sales Tax Act, 1959. After the decision of the Tribunal dated 10th October, 1973 the respondents accordingly filed another application for the determination of this question. In this application ultimately the Tribunal by its order dated 3rd December, 1974 held that 'Jai Kajal' was a medicine covered by entry 38 of the said notification. From this decision of the Tribunal the Commissioner of Sales Tax applied for a reference being made to this High Court. The reference application was, however, rejected by the Tribunal on 30th January, 1976. No application was filed before the High Court from this order of the Tribunal rejecting the reference application. The determination therefore became final and binding. In view of his determination the respondents have proceeded since 1976 on the basis that 'Jai Kajal' is a 'medicine'.
9. In the present reference, the applicants filed their paper book in the High Court only on 28th February, 1970, i.e., almost 5 1/2 years after the reference application was granted by the Tribunal, and almost 3 years after the reference application of the Commissioner of Sales Tax was rejected in the second determination proceedings. The notice in the present reference was served on the respondents on 24th July, 1980. Mr. Patel has submitted that in view of this gross delay on the part of the applicants, the respondents have suffered considerable hardship. In view of the second determination proceedings the respondents have not collected any general sales tax on 'Jai Kajal', after the said decision and they have also not collected sales tax on the basis that 'Jai Kajal' falls under entry 38 of the said notification. Moreover, in view of the pending reference their assessments from the assessment year starting from 1st July, 1968 have been kept open. In these circumstances there is not doubt that the respondents are in a situation which can be described as somewhat unenviable - to put it mildly. We cannot, however, decline to answer the reference on that ground.
10. In the present case we are not called upon to decide whether 'Jai Kajal' is a medicine covered by entry 38 of the said notification. We have only to consider whether it will fall under entry 19 of Schedule E or under the residuary entry 22 of Schedule E. For the reasons which we have set out, the question is answered in the affirmative, i.e., in favour of the respondents and against the Department.
11. The applicants will pay to the respondents costs of the reference.