1. This is a reference under Section 11 (4) of the U. P. Sales Tax Act at the instance of the Commissioner, Sales Tax, U. P. Lucknow. The following question has been submitted for our opinion :--
'Whether in the facts and circumstancesof the case hair pins, hair clips and tikulis are taxable as cosmetics and toilet requisites as defined in item No. 6 of Notification No. 905/X dated 31st March, 1956 and will be taxable at 6 per cent. or 7 per cent.?'
2. The assessee carried on the business of manufacture and sale of hair pins, hair clips and Tikulis of plastic and other allied materials. The dispute relates to the rate of tax on the turnover of the articles mentioned above, during the period 1-4-1960 to 31st March, 1961. The assessee's contention is that these articles are unclassified goods and are taxable @ 2 per cent, whereas the contention of the Department is that they arc toilet requisites and are taxable @ 6 per cent, or 7 per cent, under Notification No. 905/X dated 31st March, 1956. The assessee's contention was not accepted by the Sales Tax Officer but was accepted on appeal by the Appellate Authority, whose decision the Revising Authority has also upheld. The Commissioner is aggrieved and hence this reference.
3. A Division Bench of this Court in the case of Plastic Products Ltd. v. Commr. of Sales Tax, U. P. Lucknow, 19 STC 480 --(AIR 1968 All 3) has held that only those articles which are used up or consumed in the process of application can be called as 'Cosmetics and toilet requisites'. The Supreme Court on the other hand in the case of State of Gujarat v. Prakash Trading Co., 30 STC 348 = (AIR 1973 SC 960 = 1973 Tax LR 1813) has held that tooth brush is a toilet requisite. Now a tooth brush is not used up or consumed in the process of application like other articles of cosmetics, such as face powder, creams etc. The view taken by this Court in the case of Plastic Products Ltd. (supra) does not, therefore, seem to be in consonance with the view of the Supreme Court and, as such, this case was referred to a larger Bench by a Division Bench before which it came up for hearing originally. That is how this case has come up before us.
4. Notification No. 905/X, dated 31st March, 1956 is a notification under Section 3-A of the U. P. Sales Tax Act (hereinafter referred to as the Act), issued by the State Government, which prescribes that the turnover in respect of the goods specified in the list attached thereto will be taxable at the rate of one anna per rupee at the point of sale by the manufacturer in the case of goods manufactured in the State of U. P. and at the point of sale by the importer in the case of goodsimported in the State of Uttar Pradesh. The rate of one anna per rupee has been subsequently changed to six per cent, or seven per cent. Item No. 6 in the list is Cosmetics and toilet requisites'. The short question, therefore, that we have to answer is as to whether hair clips, hair pins and Tikulis fall within this entry? namely, whether they are cosmetics and toilet requisites. At the hearing the learned Standing Counsel stated that the Department does not press its claim with regard to the Tikulis so that we are only left with hair pins and hair clips.
5. The expression 'cosmetics and toilet requisites' has not been defined in the Act so that it shall have to be understood as in common parlance. Cosmetics, according to the Webester's International Dictionary is 'a preparation designed to beautify hair, skin or complexion or to alter appearance of the body or for cleansing, colouring conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression 'toilet' as 'an act or process of dressing, espcially formerly of dressing hair and now usually cleansing and grooming of one's person. 'Toiletry' according to the dictionary, is 'an article or preparation used in making one's toilet such as soap, lotion, cosmetics, tooth-paste, shaving cream etc. Now hair pins and hair clips are not preparations for beautifying or altering the appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. They are appliances used for holding the hair in place after they have been combed and brushed. So these articles may not fall in the category of 'cosmetic', but certainly they do fall in the expression 'toilet requisite' which means an act or process of dressing, cleansing and grooming one's person. The Supreme Court in 30 STC 348 = (AIR 1973 SC 960 = 1973 Tax LR 1813) (supra), relied upon the dictionary meaning quoted above to hold that tooth paste and tooth brush are both toilet requisites. A similar view was taken by the Supreme Court in the case of Sarin Chemicals Laboratory v. Commr. of Sales Tax U. P., 26 STC 339 = (AIR 1971 SC 65) where it was held that tooth powder was an article of toilet. Assessee has relied upon the decision of a Division Bench of this Court in Plastic Products Ltd., 19 STC 480 = (AIR 1968 All 3) (supra). There a view has been taken that cosmetic is a specific word and 'toilet requisite' are general words, which must have the same meaning as 'cosmetic' by applying the rule of ejusdem generis. A cosmetic, as has been noticed above, means a preparation designed to beautify hair, skin or complexion or to alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. A preparation of this nature would ordinarily be used up or consumed in the process of application, such as, cream, lotion powder etc. But toilet article need not ordinarily be so consumed or used up. Itwill also include appliances used in the process of washing, grooming and arranging one's self for the day's activities or for special occasion, (See: Webster's Third New International Dictionary). In common parlance also cosmetic and toilet requisite are well understood. They are two different processes even though complementary to each other. Toiletry comes first, when a person washes and cleans his body, hair and teeth etc. Hair is combed and arranged and held in place by ladies by using hair pins and hair clips. It is thereafter that the cosmetics are applied in order to beautify one's person. The view taken by this Court in Plastic Products Ltd. (Supra) is too narrow a view to be accepted. We do not find anything in the context or according to the popular meaning to restrict the words 'toilet requisite' to 'cosmetics', even though some of the articles may be regarded both as articles of toilet and cosmetic. But appliances like tooth brush and hair pins, hair clips are essentially articles of toiletry and not cosmetics, as this term is understood in common parlance.
6. We accordingly answer the question by saying that hair pins and hair clips are 'toilet requisites' as defined in Item No. 6 of Notification No. S. T. 905/X, dated 31st March, 1956.
7. The Commissioner of Sales Tax is entitled to costs which we assess at Rs. 200/-.