R. M. Sahai, J. - The following question has been referred for our opinion by the Additional Revising Authority Sales Tax, Allahabad.
'1. Whether perfumed hair oil appertains to the class of 'cosmetic and toiler requisites' taxable at 10% under Notification No. Sp- 7094/X-1012-1965 dated 1-10-1965 or as oils of all kinds other than edible oils manufactured on Ghanis by human or animal power under Notification No. S.T. 1470/X-902 (63)-50 dated 15-3-65 for the year 1968-69 ?.
2. Whether in the facts and circumstances of this case, the turnover of Rs. 8,000/- and perfumed hair oil was taxable at 3% or 10% ?.
2. The turnover of the perfumed hair oil manufactured and sold by the assessee was assessed at 10 per cent as in the opinion of the Sales Tax Officer it was covered by the entry 5T-7094 dated 1st October, 1975. The assessee being unsuccessful in appeal filed revision which was allowed as the Judge Revision was of the view that perfumed hair oil was included in the terms Bill of all kinds which was taxable at 3 per cent in the hands of manufactures. The question raised in this reference is not free from difficulty. The test would be applied in interpreting entries in the Notification under the Sales Tax is popular perlance in commercial circle. Perfumed hair oil an item which to our minds falls under both the Notifications. It is as much covered in the heading of Oil of all kinds as under cosmetic and toilet requisites. No Dictionary or any test of popular is needed to hold that perfumed hair oil is covered by the entry Oil of all kinds Similarly it is well known that perfumed hair oil is an item of cosmetic and toilet requisites. This phrase has been subject matter of interpretation in two Supreme Court decisions reported in Sarin Chemical Laboratory vs. State of U.P. (26 Sales Tax Cases 339) and State of Gujarat vs. Prakash Trading Company (30 Sales Tax Cases 648). Hair Oil as the expression itself indicates is used for dressing hair. Its object is not only to keep the hair tidy, maintain its growth, check baldness but also to beautify appearance. As such there can hardly be any controversy that it is squarely covered by the entry cosmetic and toilet requisites. Reliance on the principle generabillun special a derogant has been placed by both the sides. In our opinion both the entries are general in nature and have been expressed in widest terms. One of the tests it such circumstances is to find out the legislative intent from a perusal of various Notifications issued from time to time. Notification No. S.T. 119 dated 7th June, 1948 exempts edible oil pressed on Ghanis. The other Notification S.T. 117 dated 8th June 1948 levies tax on oil of all kinds at 6 pies whereas edible oil is taxed at 3 pies. This shows that oil has been classification two categories i.e. edible oils and oils of all kinds. Edible oil has further been sub-classified as edible oil and edible oil pressed on Ghanis by human and animal Labour. The latter has either been exempt or taxed at a very low rate. This classification has been maintained from 1948 till today. The first Notification regarding cosmetic and toilet requisites was issued on 1st July 1948 and it was taxed at 9 pies. This was enhanced in 1956 to one anna. From 1956 to 1961 by Notification ST-905 dated 31st of March, 1956 both oil of all kinds and cosmetic and toilet requisite were taxable at the same rate. From 1961 cosmetic and toilet requisite became taxable at 7 paise which was enhanced to 10 paise in 1965. A close look at the Notification issued in 1948 would indicate that lesser rates were applied to goods which were more in demand by common man, whereas higher rate was imposed on goods which were required by middle class and still higher rate was applied to articles used by affluent persons in society. For instance edible oils, tanned leather, sugar etc. were taxed at 3 pies, cotton yarn manufactured by mills, cloth manufactured by mills woollen goods, leather goods etc. were taxed at 6 pies; silk linen, glassware, paints at 9 pies; motor vehicles, refregerators, scent and perfumed were taxed at one anna. The pattern which is discernible has always been maintained. Keeping the classification in view, it would be more appropriate to tread perfumed hair oil as cosmetic and toilet requisities. It is an item which is generally used by persons in the middle class and higher strata of society. There is yet another reason which impels us to hold that perfumed hair oil is taxable at 10 per cent. Scents and perfumes from the very beginning have been taxed at higher rate. From 1948 to 1961 they were taxable at one anna and from 1961 onwards taxable at 7 pies, the rate at which the cosmetic and toilet was taxable. Perfumed hair oil apart from becoming exigible to higher tax becomes an item different from oil of all kinds. It appears oils which have any other distinctive characteristic have been treated differently for example coconut oil kerosene oil, diesel oil etc. We are of opinion that after the addition of perfume hair oil acquires a distinctive character of becoming a cosmetic and toilet requisite. It has been strenuously urged for the assessee that a perusal of Notification No. ST 8492 dated 30-9-69 read with ST 8490 dated 30-9-69 would demonstrate that perfumed hair oil was always understood as being an item covered by oil of all kinds. Its exclusion from the earlier Notification indicates that before 1969 it was always intended to be included in it. The arguments is attractive and not without force. The court below has also taken the same view. In our opinion this is a colourless circumstance, for sometimes the word 'include' is used by the legislature not to extend the meaning of a word but to give an exhaustive meaning of the word by way of clarification. The privy Council in Dilworth vs. Commissioner of Stamps, (1899) A.C. 99 at page 106) referring to the meaning of the word include in certain circumstances observed thus :
'But the word' include is susceptible of another construction, which may become impertinent, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expression defined. It may be equivalent to mean and include, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act must invariable be attached to these words or expressions.'
Considering the background in which the word include was used in the Notification and the fact that perfumed hair oil is properly a cosmetic or toilet requisite, the Notification No. S.T. 8492 of 1969 did nothing more than to give an exhaustive meaning to the words cosmetic and toilet requisites. Perfumed hair oil was specifically included in cosmetic and toilet requisite by Notification No. ST 8490. Once it was included its exclusion or otherwise became immaterial. It may further be noticed that Notification issued by the State Government were adopted by the Legislatures in 1971. It is presumed that the Legislature is aware of the needs of its people and keeps abreast with the changed and developments in the society. An item of luxury with the passage of time becomes an item of necessity. It appears that it was more to clarify than to classify that perfumed oil was with effect from 1969 included as one of the articles under the heading cosmetic and toilet requisites.
3. For the reasons stated above we answer the question referred to us by saying that perfumed hair oil appertain to the class of cosmetic and toilet requisities taxable at 10 per cent under Notification No. S.T. 7094/X-1012-1965 dated 1st October 1965. Our answer to the second question is that the turnover of Rs. 8,000/- of perfumed hair oil was taxable at 10 percent. As the question was not free from difficulty we do not think it expedient to burden the assessee with costs. In the circumstances of the case the parties shall bear their own costs.