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Sialkot Trading Co. Vs. the Assistant Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 344 of 1973
Judge
Reported in[1980]45STC245(Delhi)
AppellantSialkot Trading Co.
RespondentThe Assistant Commissioner of Sales Tax and anr.
Appellant Advocate B.N. Kirpal and; Madan Lokur, Advs
Respondent Advocate P.C. Chawla, Adv.
DispositionPetition dismissed
Cases ReferredInstallment Supply (Private) Ltd. v. Union of India
Excerpt:
- - 489 ,in which the law has been clearly laid down by the supreme court. cosmetics is a general term which would include all toilet articles as well. hair-oil is used not only to beautify but also preserve hair which preservation and grooming is necessary for good appearance. what are commonly called toilet articles can be regarded as cosmetics and in the age in which we are living many cosmetics would, for a good section of the people, be regarded as essential items of toilet......and adornment, while items of toilet are used by everyone. the contention is that the term 'cosmetics' should be so construed. there is a fallacy in this argument. cosmetics is a general term which would include all toilet articles as well. indeed, that is how the entry in question becomes intelligible, otherwise soap would not have been excluded. webster's international dictionary (second edition) defines 'cosmetics' as 'an external application intended to beautify and improve the complexion, skin or hair'. the oxford english dictionary defines the term 'cosmetics' as 'a preparation intended to beautify the hair, skin or complexion'. encyclopedia britannica says that cosmetics are substances especially prepared to improve, beautify and generally increase the attractiveness.....
Judgment:

Prakash Narain, J.

1. Whether hair-oil is not a cosmetic and is merely an article of toilet is the common question of law which comes up for determination in Civil Writ No. 344 of 1973 and S.T.R. No. 9 of 1977 and S.T.R. No. 10 of 1977.

2. The assessment year in all the three cases is 1968-69. The petitioner in Civil Writ No. 344 of 1973 and the applicants in the two references carry on the trade of, inter alia, selling hair-oil and have been in this business for some time. They are also registered dealers within the meaning of the Bengal Finance (Sales Tax) Act, 1941 (as extended to the Union Territory of Delhi). Their turnover of sale of hair-oil has been taxed at the rate of 8 per cent by the Sales Tax Officer during the assessment for the year 1968-69 by treating hair-oil as a cosmetic falling under entry 17 of the First Schedule to the aforesaid Act. This entry reading 'cosmetics, but not including kum kum and soap', was included in the First Schedule to the Act with effect from 1st September, 1966, vide Notification No. F. 4-187-164 Finance (E)(i) dated 31st August, 1966, published in the Delhi Gazette, Extraordinary, Part IV. Till the assessment year in question, by virtue of a circular hair-oil was taxed at the rate of 5 per cent by considering hair-oil as an item, other than those items which are specified in Schedules I and II. In the case of the applicants in Sales Tax References Nos. 9 and 10 of 1977, the assessing authority had levied tax at the rate of 5 per cent even for the year 1968-69. The said assessment orders were revised suo motu by the Assistant Commissioner of Sales Tax: vide his orders passed in the respective cases on 24th March, 1973. The revision petitions filed by the assesseds were dismissed by the Financial Commissioner by his orders dated 18th July, 1975, passed in the two cases. In the case of the petitioner in C.W. No. 344 of 1973 also, the Sales Tax Officer by his order dated 14th November, 1969, computed the taxable turnover of the petitioner and levied sales tax on the turnover of hair-oil at the rate of 5 per cent. A notice dated 14th March, 1973, was received from the first respondent namely, the Assistant Commissioner of Sales Tax, issued under Section 20(3) of the Act proposing to revise the assessment and levy of sales tax at the rate of 8 per cent by including hair-oil in entry 17 of the First Schedule. The petitioner challenged the validity of this notice. In the meanwhile, the assessment was finalised by the Assistant Commissioner of Sales Tax. In effect, thereforee, the three cases are now identical.

3. Section 5 of the Act provides for the taxable turnover of items falling in the First Schedule which attract a tax of 8 per cent. Taxable turnover of items not falling in the First Schedule and the Third Schedule invite a tax of 5 per cent. By virtue of the provisions of Section 6, turnover of items falling in the Second Schedule are exempt from taxation, subject, of course, to certain conditions being fulfillled. We are concerned only with entry 17 of the First Schedule, which has already been read.

4. The first contention on behalf of the assesseds is that circulars issued by the department have a binding effect and revision of tax contrary to those circulars is against law. Indeed, it is urged, circulars have even a retrospective effect, as the rigour of taxation can be reduced by the issue of a circular, which is in the nature of a beneficial circular. It is submitted that subsequent withdrawal of such circulars cannot adversely affect rights accrued earlier due to the earlier circulars having the force of law. Reliance has been placed on Navnit Lal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax, Bombay : [1965]56ITR198(SC) , Ellerman Lines Ltd. v. Commissioner of Income-tax, West Bengal : [1971]82ITR913(SC) , and Tata Iron and Steel Co. Ltd. v. Kum. D.V. Bapat : [1974]96ITR1(Bom) . In our opinion, the contention has no force. The cases relied upon arose under the Income-tax Act, 1961. Section 119 of that Act specifically empowers the Board of Direct Taxes to issue such orders, instructions and directions to income-tax authorities as it may deem fit for the proper administration of the Act and also provides that authorities to whom such orders, instructions, etc., are issued are under an obligation to observe and follow such orders, instructions and directions of the Board. In that context, it has been held, in the decisions relied upon, that circulars have binding force of law. There is no provision pointed out to us in the Bengal Finance (Sales Tax) Act which empowers anyone to issue circulars or directions, much less making such circulars or directions mandatory or binding. As was observed in Mathra Parshad and Sons v. State of Punjab [1962] 13 S.T.C. 180 , there can be no estoppel against a statute. If the law requires that a certain tax is to be collected, it cannot be given up and any assurance that it would not be collected, would not bind the State Government, whenever it chooses to collect it. The sales tax department, unless so authorised by law, cannot change the law or give any benefit unless authorised to do so. Departmental instructions cannot affect the operation of the law, much less retrospectively. We need only refer to Installment Supply (Private) Ltd. v. Union of India [1961] 12 S.T.C. 489 , in which the law has been clearly laid down by the Supreme Court.

5. So much with regard to the advantage that the assesseds sought to take from the earlier circulars of the department and their contention that beneficial circulars should be held binding and even having retrospective effect. We now come to the main question as to whether hair-oil cannot be regarded as an item of cosmetic.

6. Great emphasis has been laid that hair-oil is an article of toilet and so cannot be regarded as cosmetic. Some reported decisions regarding tooth-powder have been relied upon. In our opinion, the argument is misconceived. The relevant entry refers to all cosmetics specifically excluding kum kum and soap. Kum kum, no doubt, is used by ladies either out of religious sentiments or for adornment, but soap, generally speaking, would be as necessary an item of daily toilet as tooth-paste or tooth-powder. By no stretch of imagination can one say that kum kum is an item of toilet, but, if the interpretation of the assesseds is to be accepted, soap, which is an item of toilet, was being included in items of cosmetics, but for being specifically excluded. What is cosmetic and what is toilet article is the question. One may refer to the dictionary or one may look at it as a term of common parlance. It has been urged that the term 'cosmetic' is generally used for items used by a somewhat wealthier section of the society for beautification and adornment, while items of toilet are used by everyone. The contention is that the term 'cosmetics' should be so construed. There is a fallacy in this argument. Cosmetics is a general term which would include all toilet articles as well. Indeed, that is how the entry in question becomes intelligible, otherwise soap would not have been excluded. Webster's International Dictionary (Second Edition) defines 'cosmetics' as 'an external application intended to beautify and improve the complexion, skin or hair'. The Oxford English Dictionary defines the term 'cosmetics' as 'a preparation intended to beautify the hair, skin or complexion'. Encyclopedia Britannica says that cosmetics are substances especially prepared to improve, beautify and generally increase the attractiveness of the person; cosmetics preparations are, thereforee, intended to promote the health and beautifying of the complexion, hair, hands and nails. We need not refer to any more definitions. The definitions quoted above thus show that the term 'cosmetics' is a general term which would include all articles intended to beautify, adorn, protect or improve the skin, the human body or any part thereof. Hair-oil is used not only to beautify but also preserve hair which preservation and grooming is necessary for good appearance.

7. The term 'toilet' as such has not been used in any of the schedules of the Act. However, to comment upon the contention on behalf of the assesseds, we may notice the dictionary meaning of the term 'toilet articles'. Webster's New International Dictionary defines 'toilet' as a verb, 'to make one's toilet, dress, to go to the bathroom for washing or to the toilet for urinating or defecating, groom'. Thus, a toilet article would be anything required for the above purposes. Toiletry or a toilet article is defined as 'an article or preparation used in making one's toilet (as a soap, lotion, cosmetic, tooth-paste, shaving cream, cologne). The Oxford English Dictionary defines toilet as 'to dress, attire, comb, etc.' Toiletry is defined as 'performance of the toilet; the apparatus of the toilet'.

8. In effect, toiletry and cosmetics would be synonymous terms. What are commonly called toilet articles can be regarded as cosmetics and in the age in which we are living many cosmetics would, for a good section of the people, be regarded as essential items of toilet.

9. The question before us is not whether hair-oil is a toilet article. The question is whether it is not an article of cosmetics. In our opinion, there can be no doubt that, in the absence of the use of the word 'toilet' or 'toiletry' in any of the schedules of the Act, cosmetics would include hair-oil.

10. Accordingly, Sales Tax References Nos. 9 and 10 of 1977 are answered in favor of the revenue.

11. We find no force in the contentions raised in the writ petition. The rule is discharged and the petition dismissed.

21. In the circumstances of the cases, there will no order as to costs.


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