P.D. Mulye, J.
1. The decision of this case will also govern the disposal of Misc. Civil Case No. 79 of 1972 (M/s. N. Ganu Bhai, Raipur v. Commissioner of Sales Tax, M.P.) and Misc. Civil Case No. 78 of 1973 (Commissioner of Sales Tax v. Naaz Agency, Bhopal).
2. In these cases, a reference has been made by the Board of Revenue, Madhya Pradesh, under Section 44 of the M. P. General Sales Tax Act, 1958, to decide the following question of law :
(a) In Misc. Civil Cases Nos. 80 of 1972 and 79 of 1972: 'Whether, with effect from 15th April, 1965, ultramarine blue or ultramarine Robin blue, commonly known as neel should be taxed under entry 25 of Schedule II, Part II, of the M. P. General Sales Tax Act, 1958.'
(b) In Misc. Civil Case No 78 of 1973 : 'Whether neel comes under entry No. 25 of Part II, Schedule II, of the M. P. General Sales Tax Act, 1958.
3. The assessee, in the present case, deals in hair-oil, cosmetics, varnishes, floor and metal polish, ultramarine blue, etc. The dispute was whether ultramarine blue, i. e., neel was taxable at the rate, as per entry No. 25 of Part II of Schedule II of the M. P. General Sales Tax Act, 1958, or should be taxed only under the residuary entry in Part VI of Schedule II of the said Act.
4. Entry No. 25 of Part II of Schedule II, prior to 15th April, 1966, was as follows :
Paints and varnishes including glue, polish, brush, sandpaper, turpentine oil, enamels and bale oil.
This was taxable at 7 per cent. With effect from 15th April, 1966, the said entry was revised as under :
Dyes, paints, varnishes, lacquers, enamels, glue, paint-brush, sandpaper, turpentine oil and bale oil and polish other than boot polish.
This was taxable at 10 per cent. From 1st September, 1967, the contents of the entry remained the same, but the rate was raised to 11 per cent.
5. Thus 'dyes' were added and included in the said entry and as a result of this, it was contended by Shri Adhikari, the learned counsel for the respondent, that ultramarine blue, i. e., neel should be included in the category of dyes as neel is a dye and should be taxed accordingly.
6. Admittedly, ultramarine blue, i. e., neel is not specifically mentioned in any of the entries of Part II of Schedule II of the said Act and it is nobody's case that neel is a paint or a varnish or a lacquer or an enamel or glue or polish.
7. The assessment of the sale of a commodity should ordinarily be with reference to the use to which that commodity is normally put to and not with reference to an occasional or extraordinary use. It is the common use which should determine how an article or commodity is to be categorised. In this sense, the use to which neel is put to is ordinarily as that of a brightening agent and is commonly used to increase whiteness of clothes and occasionally as a colouring agent for white-washing. The use of colouring is said to be when mixed with colour and other material.
8. Neel is ultramarine blue, sold under different trade names, such as Skylark Robin, etc. According to the Concise Oxford Dictionary, 'ultramarine blue' is a pigment got from lapis lazuli; artificial u. (made by mixing clay, carbonate of soda, sulphur and resin). 'Lapis lazuli', according to that dictionary, is a sodium aluminium silicate containing combined bright blue pigment from it (sic). According to the same dictionary, 'blue' is a pigment, powder used by laundresses. According to Chambers's Encyclopaedia, Vol. II, page 245, blue pigments in common use by artists consists of native and artificial ultramarine, cobalt, indigo and prussian blue. Genuine ultramarine prepared from lapis lazuli and ordinary cobalt blue are permanent colour, used either alone or mixed with other pigments, chiefly for skies and distances in landscapes and by themselves or to make up grey and other mixed tints in figures painting. Owing to the exceptionally high price of real ultramarine blue, the artificial colour which is of doubtful permanency is usually substituted for it. Neel by itself is not a colour.
9. According to I. L. Finar, Organic Chemistry, Vol. I, for a substance to act as a dye, certain conditions must be fulfilled, namely, (a) it must have a suitable colour, (b) it must be able to 'fix' itself or be capable of being 'fixed' to the fabric, (c) when fixed, it must not be fugitive, i. e., it must be fast to light and it must be resisting to the action of water and to a certain extent, the more the better, to dilute acids and alkalies (particularly the latter on account of the alkaline nature of washing-soda).
10. According to the Concise Oxford Dictionary, the meaning of the word 'dye' is when used as noun, colour produced by or as by dyeing, tinge, hue ; matter used for dyeing colouring-matter in solution and when used as a verb, it means colour, stain, tinge ; impregnate (tissue) with colouring-matter while material is in raw state, giving more permanent result.
11. There are various methods of classifying the various dye-stuffs. The really scientific method is to divide them into classes according to their chemical constitution, but this is not convenient for practical purposes, and it is better to classify them into groups according to the methods employed in their application to the various textile fabrics. Many of the natural dyes can now be prepared artificially and it has also been found that there is no essential difference in chemical constitution between the two classes. For practical purposes, the dye-stuffs now in use may be divided into the following nine classes: (1) Direct cotton dyes, (2) Basic dyes, (3) Acid dyes, (4) Mordant dyes, (5) Sulphur dyes, (6) Vat dyes, (7) Insoluble ozo dyes, (8) Oxidation dyes, and (9) Mineral dyes. And there is no material on record to show that neel is a dye which belongs to any of the classes aforesaid. It was argued that because a tinge of neel is used for white-washing, therefore, it should be presumed to be a dye, but this cannot be accepted in view of this discussion.
12. Thus, a dye is that which (a) can be used to impregnate tissues while the material is in a raw state giving more permanent result, (b) is able to fix itself or is capable of being fixed to a fabric, (c) when so fixed, is not fugitive in the sense of being fast to light and resistent to water action, (d) can dilute acids and alkalies, (e) is either a direct colouring material used directly on the fibre or a mordant requiring the use of other substances (acid or basic) for effective use.
13. Ultramarine blue is (a) a pigment got either from 'lapis lazuli' or artificially by mixing clay, carbonate of soda, sulphur and resin, (b) that when obtained from lapis lazuli or cobalt, it can be permanent and can be used by artists for painting skies and distances in landscapes, (c) when obtained artificially is not permanent, (d) also the base for a powder used by laundresses.
14. Treating neel as a dye arises out of the failure to distinguish 'dye' in its true meaning from a pigment and from the 'blue, a powder used by laundresses'. This powder cannot be used to impregnate tissues when the material is in a raw state to yield more permanent results. It is not capable of being fixed to the fabric as when it is used on the fabric it is fugitive, not fast to light, nor resistant to action of water and is not capable of diluting acids or alkalies. It is not seriously disputed that neel is used after the clothes are washed, usually at the first rinsing, and that with each rinsing it gets washed away. It cannot resist or withstand the use of detergents or even washing-soda which is alkaline in nature. Finally, it is neither a direct dye nor a mordant.
15. Besides, entry 25 of Part II of Schedule II reads 'dyes, paints, varnishes, lacquers, enamels, glue, etc.' The word 'dyes' should be understood as denoting that type of material which is more or less similar to the other goods described.
16. Thus, as a result of the above discussion, we are of opinion that ultramarine blue, i.e., neel is not a dye and we hold accordingly.
17. The reference is, therefore, answered by saying that ultramarine blue or ultramarine Robin blue, commonly known as neel, cannot be taxed under entry 25 of Schedule II, Part II, of the M. P. General Sales Tax Act, 1958, and should be taxed only under the residuary entry in Part VI of Schedule II.
18. The costs of the applicants in Misc. Civil Cases Nos. 79 of 1972 and 80 of 1972 shall be borne by the non-applicant. Counsel's fee Rs. 50 in each case, if certified. The cost of Misc. Civil Case No. 78 of 1973 shall be borne by the parties as incurred, as none appeared in that case on behalf of the non-applicant.