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Commissioner of Sales Tax, Maharashtra State, Bombay Vs. La Bela Products - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax Reference No. 34 of 1979 in Reference Application No. 124 of 1975
Judge
Reported in1985(5)ECC232; [1985]59STC221(Bom)
ActsBombay Sales Tax Act, 1959 - Sections 52 and 61(1)
AppellantCommissioner of Sales Tax, Maharashtra State, Bombay
RespondentLa Bela Products
Excerpt:
.....articles--auto-sticking bindies called 'beauty spots'--fall under entry in respect of kumkum in entry 32 of schedule a to bombay act--construction of statutes--entries in schedule to sales tax act must be interpreted in the light of current conditions--bombay sales tax act (51 of 1959), schedule a, entry 32 ; schedule e, entry 7. - - the tribunal pointed out that since the commissioner had himself taken the view that kumkum could be in liquid form or in the shape of pencil there was no reason why the meaning of the word 'kumkum' could not be extended to the aforesaid beauty spots as well. traditionally this spot was used by married women as a sign of their happy state. it could be more appropriately regarded as used by hindu ladies for proper grooming or as a symbol of..........all taxes. entry 32 of schedule a as it stood at the relevant time read 'kumkum' (including liquid kumkum). schedule e consists of a list of goods the sale or purchase of which is subject to sales tax, general sales tax, purchase tax and retail sales tax. entry 7 of schedule e as it stood at the relevant time read thus : 'toilet articles including hair cream, hair tonic and hair oil (but excluding soap, tooth powder and tooth paste).'5. the question before us is, which of the two aforesaid entries could be regarded as covering the aforesaid goods, namely, the aforesaid bindies or what were called as 'beauty spots'. it is clear from the record that the samples of these bindies were shown to the tribunal. they were shown to us also. they are thin sheets of p.v.c. material of different.....
Judgment:

Kania, J.

1. This is a reference on a case stated by the Sales Tax Tribunal under section 61(1) of the Bombay Sales Tax Act, 1959. The question referred to us for our determination in this reference is as follows :

'Whether on a true and proper interpretation of the scope of entry 32 of Schedule A and entry 7 of Schedule E, the Tribunal was correct in holding that 'beauty spots' sold by he opponent were 'kumkum' within the meaning of the former entry and were not 'toilet articles' within the meaning of the letter ?'

2. The facts giving rise to this reference are as follows :

The respondent is a registered dealer under the Bombay Sales Tax Act, 1959. The respondent made an application by a letter dated 27th August, 1973 to the Commissioner for determining the rate of tax on the sale of auto-sticking bindies sold by the respondent under the name 'beauty spots'. Along with the said application the respondent sent its cash memo No. 115 dated 17th May, 1973 in respect of the sale of a number of these items by it to one M/s. V. C. Jain. The said application was under section 52 of the Bombay Sales Tax Act. In the application it was stated that the said goods were manufactured mainly out of the P.V.C. sheets and some chemicals used for the purpose of sticking. The contention of the respondent was that these goods were not covered by entry 7 of Schedule E to the Bombay Sales Tax Act, 1959 but they were covered under entry 32 of Schedule A or alternatively under entry 22 of Schedule E. By his order dated 1st December, 1973 the Commissioner held that the said goods were toilet articles and were covered by entry 7 of Schedule E to the said Act. The order of the Commissioner shows that the said goods comprise auto-sticking or auto-sticking 'beauty spots' made mainly out of P.V.C. sheets and same chemicals. The chartered accountant, who appeared before the Commissioner on behalf of the respondent forwarded to the Commissioner certain samples of 'kumkum' in pencil form in three different colours, viz., red, violet and maroon and also kumkum in liquid form (red and green). The Commissioner took the view that the bindies in question were toilet requisite used not only by married women but by unmarried girls for the purpose of grooming themselves.

3. The respondent preferred an appeal against this decision to the Sales Tax Tribunal and the Sales Tax Tribunal took the view that the said bindies or 'beauty spots' as they were called, were covered by entry 32 of Schedule A to the Bombay Sales Tax Act and no by entry 7 of Schedule E. The Tribunal pointed out that since the Commissioner had himself taken the view that kumkum could be in liquid form or in the shape of pencil there was no reason why the meaning of the word 'kumkum' could not be extended to the aforesaid beauty spots as well. It is the correctness of this decision which is sought to be tested by way of the aforesaid question before us.

4. Schedule A consists of a list of goods the sale or purchase of which is free from all taxes. Entry 32 of Schedule A as it stood at the relevant time read 'kumkum' (including liquid kumkum). Schedule E consists of a list of goods the sale or purchase of which is subject to sales tax, general sales tax, purchase tax and retail sales tax. Entry 7 of Schedule E as it stood at the relevant time read thus : 'Toilet articles including hair cream, hair tonic and hair oil (but excluding soap, tooth powder and tooth paste).'

5. The question before us is, which of the two aforesaid entries could be regarded as covering the aforesaid goods, namely, the aforesaid bindies or what were called as 'beauty spots'. It is clear from the record that the samples of these bindies were shown to the Tribunal. They were shown to us also. They are thin sheets of P.V.C. material of different colours, round in shape, one side of which has been treated with some chemicals to make them stick to the skin. We have seen these goods and we noticed that all of them were round in shape and although the sizes were different, they were all suitable for application to the middle of the forehead. There is no dispute about this and it is common ground that these goods are used generally by Hindu ladies and girls for applying on the middle of the forehead. The word 'kumkum' is not a word which can be found in a standard English dictionary because it is an item which is peculiarly Indian. It is common knowledge that it comprises the material used by Hindu women for centuries for making a round spot in the middle of the forehead. At one time women only applied red spots in the middle of the forehead. With the passage of time one finds that instead of red spots women apply spots of different colours, although generally round in shape. Traditionally this spot was used by married women as a sign of their happy state. At present it is being used merely by way of tradition. Generally a normal Hindu woman, particularly married, would regard it as a requisite for proper grooming. But what we have really to see is whether such article could be more appropriately called a toilet article or kumkum. We find that there is no difference between these bindies or so called 'beauty spots' and what is known as 'kumkum'. All these bindies are round in shape and basically suitable for application in the middle of the forehead. If kumkum in the form of a pencil or in the form of liquid can be regarded as 'kumkum' within the meaning of entry 32 of Schedule A, we see no reason why the goods in question before us also should not be so regarded. In our view, although it may be possible to refer to these goods as toilet requisites or toilet articles, they would certainly more appropriately fall within the entry in respect of kumkum, namely, entry 32 of Schedule A. In our view, assuming that the said articles are toilet articles, merely on that ground they do not be ceased to be kumkum.

6. Mr. Jetly, learned counsel for the applicant, however, submitted that the said goods were really toilet articles and could not be called 'kumkum' at all. It was with some degree of shock that he asked the question so to how goods made of plastic could be called kumkum. We find no difficulty in regarding the goods in question as kumkum. As we have pointed out the connotation of the term 'kumkum' has been enlarged with the passage of time. The entries in a Schedule to a Sales Tax Act must be interpreted in the light of current conditions. Even at the time when the Bombay Sales Tax Act was enacted many Hindu ladies used kumkum of various colours. It was used not only in the form of a powder but also in the form of a liquid or pencil. In fact these plastic bindies have been in use for several years. They are said to be 'auto-sticking', but all that is meant by this is that they are intended for sticking on the skin without the necessity of using any other agent.

7. Mr. Jetly relied upon the decision of a learned single Judge of the Allahabad High Court in the case of Commissioner, Sales Tax v. Pali Ram Laxmi Narain reported in [1980] 46 STC 89 where it was held that 'tikuli' prepared from glass or plastic for pasting on the forehead of ladies for beautification of appearance is taxable as a cosmetic requisite and not as an unclassified item under the U.P. Sales Tax Act, 1948. The learned Judge has observed that the use of 'tikuli' is typical to Hindu ladies. It might have been used in ancient times only by married ladies but it was not denied, rather it had been found by the appellate authority, that in the present times it is being used by both married and unmarried women. According to the learned Judge, that it is an item of beautification of appearance could not be doubted. In our view this decision is of no relevance in the case before us, because there was no entry under the U.P. Sales Tax Act, 1948 covering the item 'kumkum'. We may with respect, however, point out that we do not quite agree with the observation that 'kumkum' or 'tikuli' is used by ladies normally for beautifying their appearance. It could be more appropriately regarded as used by Hindu ladies for proper grooming or as a symbol of good fortune as we have pointed out.

8. In view of what we have observed above, the question referred to us is answered in the affirmative. The Commissioner to pay costs of the reference.


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