1. This reference raises an interesting question as to the true and proper interpretation of entry 21A of Schedule E under the Bombay Sales Tax Act, 1959, hereinafter referred to as 'the Act', in respect of 3 articles, viz., (1) Palmolive shampoo, (2) Colgate tooth- brush and (3) Colgate tooth-paste. The Tribunal has referred to this Court the following two questions :
'(1) Whether on the facts and in the circumstances of the case Palmolive shampoo (large size), sold under bill No. 505 dated 15th July, 1964, is a toilet article within the meaning of entry 21A of Schedule E or is soap within the meaning of entry 28 of Schedule C or is covered by entry 22 of Schedule E to the Bombay Sales Tax Act, 1959, and liable to tax accordingly.
(2) Whether on the facts and in the circumstances of the case (i) Colgate tooth-paste and (2) Colgate tooth-brush sold under bill No. 505 dated 15th July, 1964, are toilet articles within the meaning of entry 21A of Schedule E or are covered by entry 22 of Schedule E to the Bombay Sales Tax Act, 1959, and liable to tax accordingly.' The short facts which have given rise to this reference are as under :
The applicant M/s. Prakash Trading Company had applied in respect of bill No. 505 dated 15th July, 19647, for determining under section 52 the sate of tax payable on the sales in respect of five items of which now the controversy is confined to only three items, via., (i) Colgate tooth-paste, (2) Colgate tooth-brnsh and (3) Palmolive shampoo (large size). The Deputy Commissioner of Sales Tax held that all these three articles were toilet articles within the meaning of entry 21A of Schedule E and were liable to tax accordingly. In appeal, the Tribunal has confirmed the said finding holding that all these three articles were toilet articles. The Tribunal further held that the shampoo in question was not soap as various other ingredients went into the making of the said shampoo and, therefore, it was not covered in the specific entry 28 of Schedule C. The Tribunal accordingly dismissed the appeal on the basis that all these articles were rightly held covered under entry 21A of Schedule E. The assessee has, therefore, required the Tribunal to make a reference to this Court on the aforesaid two questions :
The relevant entry 21A of Schedule E is as under : '21A. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in entry 28 in Schedule C, and hair combs as specified in entry 3D of this Schedule and hair oil as specified in entry 7 of this Schedule).'
2. From the Schedules of the various entries, it is clear that all the three excluded items bear a lower rate of tax than the one which is specified in this entry 21A and, therefore, these articles are excluded by making a specific provision elsewhere. We had occasion to interpret this entry in Sales Tax Reference No. 2 of 1966 in our decision, dated 21st June, 1968, [Since reported as State of Gujarat v. Hindustan Traders, Rajkot, at p. 103 supra] in which we held that a shaving-brush was not a 'toilet article' within the meaning of entry 21A. While interpreting this entry, we had referred to the definition of 'toilet' in Webster's New Twentieth Century Dictionary at page 1918 and pointed out that the expression 'toilet articles' would cover articles 'of or for the toilet', and the act or process of 'toilet' would be the process of dressing or grooming one's person, including the grooming of one's hair. After considering the proper scope of this entry in the context of the collocation of words used, along with the exclusion of those 'three items and especially, as razor and razor-blades which were specifically mentioned in entry 28 of Schedule C were not excluded from the list of 'toilet articles' in entry 21A in Schedule E, we gave a narrower meaning to the expression 'toilet articles' by confining them only to those articles which produce direct toilet effect, i.e. which were directly used in dressing or grooming a person so as to beautify his appearance. We did not include all those articles which when collectively used make one's toilet. As shaving-brush could not be independently used for making one's toilet, we had held that it was not a 'toilet article'.
3. In the present case the controversy has centered more round the process of toilet itself, as to whether grooming one's person is an essential element in the process of toilet, in the context of entry 21A or merely cleansing would be sufficient for the purpose to make an article 'toilet article' provided it is of direct use and is not one which is indirectly used only collectively in making one's toilet. This question was not considered in the earlier decision and, therefore, it has been elaborately urged before us. The learned Advocate-General contends for the wider meaning of the expression 'toilet article' in the sense that even mere cleansing would be sufficient and the additional ingredient of grooming would not be necessary ingredient at all in the process of toilet. The contention of the learned Advocate-General is that the Legislature has purposely not used the appropriate expression starting with 'cosmetics' first and ending with 'toilet articles' so as to leave no scope for the application of the doctrine of ejusdem generis, which would apply only when specific words are followed by general words and there is a genus. According to the learned Advocate-General,; the Legislature has deliberately used the expression 'toilet article' of the widest import with the obvious intention of augmenting the revenue and, therefore, the expression 'toilet article' could not get any colour by association with 'cosmetics'. It is true that we will have to answer the present reference only by a true and proper construction of entry 21A. We, however, refer to the various decisions, which were cited before us, in order to find out the meaning attached to 'toilet' in the various decisions.
4. The authorities which were cited before us can be divided into two groups. In the first set, we have a line of cases where we and some indication of the meaning of 'toilet articles' when they are used in close association with 'cosmetics'. The other line of cases shows the meaning of the expression 'toilet requisites' when those general words are preceded by other specific words, which require the Court to invoke the doctrine of ejusdem generis. In C. C. Mahajan and Co. v. The State of Bombay, ( 9 S.T.C. 133) the Division Bench, consisting of Tendolkar and S. T. Desai, JJ., had to consider the question whether Badshahi soap and Badshahi powder, which are used as depilatories were covered under the expression 'toilet articles', within the meaning of entry 6 in Schedule I of the Bombay Sales Tax Act, 1946, which was in the following terms :
'Perfumery, cosmetic and toilet articles, except soaps and other articles as may be specified by the State Government by notification in the official Gazette.'
5. At page 134, the Division Bench pointed out that the words 'toilet articles' included within its scope a large variety of articles and the category might not be capable of easy definition, although in a given case it might not be difficult to see whether the article fell within the category or not. It was further observed :
'Turning to the definition of the word 'toilet' in Webster's New International Dictionary the meaning of toilet is given to be 'act or process of dressing; esp., formerly, of dressing the hair, now, usually, cleansing and grooming of one's persons. There can be in our opinion little doubt that a depilatory is used for purpose of cleansing and grooming one's person and, therefore, it is a toilet article.'
6. This expression 'toilet article' in that entry was construed by the Bombay High Court by the aforesaid dictionary meaning of 'toilet' as a process of cleansing and grooming one's person and because depilatory was used as such, it was held to be a toilet article. It should be noted that even without considering the question of association of words 'cosmetics' and 'toilet articles' and without even invoking the principle of ejusdem generis, the Division Bench had given this meaning of the process of toilet.
7. In Commissioner of Sales Tax v. Sadhna Aushadhalya ( 14 S.T.C. 813.), the Division Bench, consisting of P. V. Dixit, C.J., and Pandey, J., had to consider the question whether Maha Bhringraj hair-oil was covered under the relevant entry 11 of Schedule I, Part I, of the C.P. and Berar Sales Tax Act, 1947, in 'toilet article'. At page 815 the meaning of the word 'toilet' is referred to as given in Webster's International Dictionary, as 'act or process of dressing, especially, formerly of dressing hair, now usually cleansing and grooming of one's person'. A 'toilet preparation' is any preparation which is intended to affect, and conceivably to improve the bodily appearance. The words 'cosmetics' and 'toilet', being words of everyday use, must be construed not in any technical or scientific sense, but as understood in common parlance and in commercial language. The object of all hair-oils is to tidy the hair, to promote luxuriant growth of hair and to prevent dandruff and falling hair, and it cannot be denied that if a hair-oil produces the effects proclaimed and claimed in regard to it, then the appearance of the person using it is undoubtedly improved. The Division Bench had, therefore, no doubt that the hair-oil manufactured by the assessees was a 'toilet article' and fell also within the meaning of the term 'cosmetics'.
8. We were also referred to the decision of the Maharashtra High Court in The Commissioner of Sales Tax v. M/s. Vicco Laboratories ( 22 S.T.C. 169) in Sales Tax Reference No. 16 of 1967, decided on 20th February, 1968, by the Division Bench, consisting of Abhyankar and Vimadalal, JJ., from a publication - 'Compilation of Bombay Sales Tax Act, 1959, by the Sales Tax Practitioners' Association', where the entire decision has been reproduced. The question in that case was whether Vicco Vajradanti (tooth-powder) was a 'toilet article' within entry 39 of the Bombay Sales Tax Act, 1953, which was in the following terms :
'Toilet articles except such articles as may be specified by the State Government by notification in the Official Gazette.'
9. It should be kept in mind that there was another entry 66, 'perfumes, depilatories and cosmetics (except hair-oils)' which carried a higher rate. At page 463 of the aforesaid compilation, it was pointed out in the said decision that after the aforesaid dictionary meaning, that very dictionary also gives separately the meaning of the word 'toiletry'. 'Toiletry' meant an article or preparation used in making one's toilet such as soap, lotion, cosmetic, tooth-paste, shaving cream, cologne etc. When entry 39 in the Bombay Sales Tax Act, Schedule B, used the words 'toilet articles', it would be more appropriate to construe the meaning of that entry both in its popular sense and in the sense in which it is understood generally. The Division Bench failed to see how the process of cleaning one's teeth could be excluded from what is understood by 'toilet' or 'toiletry'. If anything, that is the most essential thing to be done. If articles such as oil or a brush used for cleansing and grooming other limbs of the body such as face or the hands or feet or other parts of the body can well be included as 'toilet articles' and are described as such, the Division Bench failed to see why dentifrice or toothbrush which is used for cleansing one's teeth is deliberately required to be excluded from the list of toilet articles. The decision in C. C. Mahajan and Co. v. The State of Bombay ( 9 S.T.C. 133) referred to and it was pointed out that if an article used for grooming one's part of the body is a toilet article, by no process of reasoning can an article, i.e., like tooth-powder which is used for cleansing another part of the body, viz. teeth, can be said not to be a 'toilet article' and outside entry No. 39. This decision was vehemently relied upon by the learned Advocate-General. It is not necessary for me to go into the question whether the said decision is correct in the context of the two separate relevant entries 39 and 66 in the aforesaid Act in which the words 'toilet and cosmetics' are not used in close association. We would, however, record our express dissent from the aforesaid decision in so far as it proceeds on the assumption that the cleansing of a part of the body would in all cases amount to grooming. An obvious illustration would be the case of toilet-paper, which is always used in cleansing in W.C. where nobody would think of any grooming even though there would be even internal cleaning of a person's body by enema, such or other articles. There may be cleansing of even other parts of the body, where necessarily the result of grooming may not be there. Therefore, in any event, the said decision would not help us in resolving; the present controversy. It would have to be resolved by looking to the entry 21A before us. We are mentioning this decision at this stage only to point out as to how 'toilet articles' in the context of various entries have been Interpreted in various decisions. The other line of decisions has interpreted the expression 'toilet requisites' which would not at all be helpful in the interpretation of entry 21A of our Act, where the Legislature purposely does not use the expression 'toilet requisite' which is used in similar other legislations.
10. In Deputy Commissioner of Commercial Taxes, Madras v. Ambika Stores, ( 14 S.T.C. 688) the Madras High Court had to consider the question whether iron hairpins can be included within the meaning of 'toilet requisites' in entry 51 of the First Schedule of the Madras General Sales Tax Act, 1959, which was in the following terms :
'Scents and perfumes, powders, snows, scented hair-oils, scented sticks, cosmetics and toilet requisites, except soaps.'
11. At page 693, the Division Bench pointed out that all the articles in item 51 are intended to be rubbed, poured, sprinkled or sprayed or introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or appearance. Thus, there was a category of things preceding the words 'toilet requisites', and therefore, the doctrine of ejusdem generis had to be applied to interpret the words 'toilet requisites' as referring to the words of the same kind or nature and not intended to extend to objects of a wholly different kind, It was, therefore, held that a hairpin could not be treated as of the same category, as it could not be used either for cleansing or beautifying the body. It is only used for holding the hair. In another decision in the same volume in Somasundara Mudaliar v. State of Madras, ( 14 S.T.C. 688) the question before the Division Bench of the Madras High Court was whether tooth-powder can be covered in the said entry 51 within the meaning of the expression 'powders, cosmetics and toilet requisites'. At page 945 a passage was cited from the Encyclopaedia of Chemical Technology, New York, Volume 47 at pages 928 to 930 :
'A dentifrice is defined as a cleansing agent in the form of a powder, paste or liquid to be used on the teeth ........ Modern dentifrices are an extension of the numerous abrasive and cleansing substances used as dentifrices in the early part of 20th century ......... Although dentifrices have been considered dental cosmetics at first the emphasis of advertising and the awakening of the hygiene consciousness occasioned by the rising standard of living caused dental cleaning to be regarded as an indispensable daily hygiene, rather than an elective enhancement of beauty .... The primary purpose of a dentifrice is the mechanical cleansing of the teeth ......... Although manufacturers of dentifrices have advanced such claims in their behalf as ability to prevent dental caries (decay) and treatment of pyorrhea, the inexorable fact remains that dentifrices may be expected to perform only the principal function, the cleansing of the teeth, which includes the prevention of accumulation of layers of mucous plaques that give them an appearance of yellowness. Dentifrices are not functionally antiseptics, but in cleansing teeth they serve as detergents for teeth and mucous membranes of the mouth since water is usually used to dispose of the dentifrice after brushing .......'
12. Similarly, in the book of Popular Science, Volume 5, it was stated in page 133, 'a dentifrice may aid the brush to clean the teeth effectively ......' It was, therefore, clear that tooth-powder was mostly used for cleaning the teeth and not for enhancing the beauty of a person. It could not be treated as a 'cosmetic' in the general sense designed to make up the beauty of a person. It could not come under the class of articles intended to be rubbed, poured, sprinkled, or sprayed or introduced into or otherwise applied to the human body for cleansing, beautifying, prompting attractiveness or appearance, as held in the aforesaid decision in Deputy Commissioner of Commercial Taxes, Madras v. Ambika Stores, ( 14 S.T.C. 688) on the doctrine of ejusdem generis. This decision as such would not be useful to us as it proceeds on a totally different definition of the expression 'toilet requisite'. We have culled out the material passages only to point out the essential function of a dentifrice which cleanses teeth and which has nowadays become an article of daily routine of oral hygiene rather than which are used for enhancement of beauty.
13. The same expression was interpreted in Plastic Products Ltd. v. Commissioner of Sales Tax, ( 19 S.T.C. 480) by the Division Bench consisting of S. C. Manchanda and M. H. Beg, JJ., when the question had arisen as to whether a plastic razor was a 'cosmetic or a toilet requisite' under item 6 'cosmetics and toilet requisites' under the relevant legislation. By the doctrine of ejusdem generis 'toilet requisites' were given a narrower meaning and therefore the decision as such would not help us when we have to interpret a totally different definition. We are only referring to this decision for the narrow purpose of finding out the various meanings of the expression 'toilet' as the learned Advocate-General has vehemently relied upon the various meanings given in this decision at pages 482 and 483. Manchanda, J., considered the different uses of 'cosmetic' in the Webster's Third New International Dictionary as, 'the art of beautifying the body - a preparation (except soap) to be applied to the human body for beautifying, preserving or altering the appearance of a person or for cleansing, colouring, conditioning or protecting the skin, hair, nails, lips, eyes or teeth.' In Corpus Juris Secundum, Volume 20, this word is given the meaning as 'a general term construed as having reference to hair preparations as well as to skin lotions, as including hair oils, dyes and dressings, tooth-pastes, washes and dentifrices, and toilet soaps; defined as meaning any external application intended to beautify or improve the complexion, skin, or hair.' 'Toilet' in Webster's Third New International Dictionary means, 'to make one's toilet; dress-groom, the process of washing, grooming and arranging one's self for the day's activities or for a special occasion.' 'Toiletry' means, 'an article or preparation used in making one's toilet (such as a soap, lotion, cosmetic, tooth-paste, shaving-cream, cologne).' In Corpus Juris Secundum, Vol. 86, it is mentioned in respect of 'toilet' that 'there are several different definitions given for the word 'toilet'. It may mean an act or process of dressing; also, that which is arranged in dressing; attire; dress; get up', also a particular costume; and it may designate the several articles collectively used in making one's toilet. While formerly the term referred specially to the act or process of dressing hair, in current use it means cleansing and grooming of one's person. Thus, the act of washing and cleansing the hands is a part of making the toilet and the daily shave is generally regarded as a toilet necessity.' In that context it was observed by Manchanda, J., that 'toilet' in the dictionary meaning is very wide and toilet requisites cover a large variety of articles ranging from toilet-paper, toilet cloth to the requirements of the dressing table and bath-room, and even the safety razor would be a 'toilet requisite'. A narrow meaning was, however, given on the doctrine of ejusdem generis, especially as those words were selected for higher taxation and it was held at page 484 that toilet requisites must be confined to those articles, which are of the same genus as cosmetics. Beg, J., at page 487 also pointed out that the general dictionary meaning of 'toilet' is, 'the act or process of dressing; the process of washing, grooming and arranging one's self for the day's activities or for a special occasion.' Beg, J., further pointed out that among other meanings of the word is bath-room or lavatory fitted with 'a fixture consisting typically of a water flushed bowl with a toilet seat that is used for urinating and defecation.' The term 'toilet' was, therefore, used for all kinds of dressing or cleansing one's self. Further proceeding Beg, J., observed : 'Even if we confine our attention to the wide meaning of the term 'toilet', which are current to-day, it would cover almost every process and means employed for dressing and for making one's self presentable and ready for one's daily activities or for a particular occasion. The wide meaning of the term 'toilet' would include a bath-room or the lavatory itself, and 'toilet requisites' could, if the wide meaning was taken, include equipment such as wash-basins, pipes, water-taps, sprays, and sanitary fittings.' In the context of entry 6, however, 'toilet requisites' were given restricted meaning by applying ejusdem generis rule and it was held they covered more than cosmetics and would include preparations such as shaving-cream, tooth-paste, hair-lotions, shampoos and soap, although soap was mentioned separately in the notification, but did not include parts of the safety razors or other similar objects. In other words, 'toilet requisites' might be equated with 'toiletry' and could include whatever fell under that heading. Tools, instruments, devices like scissors, clippers, razors, electrical hair drying machines used in the process of hairdressing or shaving or manicure, could have been easily indicated clearly or mentioned specifically as other items were mentioned in the notification, the effect of which was only that sales tax was levied at a single point instead of being levied at several points.
14. Finally, in Deputy Commissioner v. Jos Zachariah ( 16 S.T.C. 799.), the Division Bench of the Kerala High Court, consisting of M.S. Menon, C.J., and P. Govindan Nair, J., considered the expression 'toilet requisites' in entry 478 of that relevant sales tax legislation as under :
''Toilet requisites' is a general expression and it covers, broadly speaking, three categories of things : (1) toilet preparations; (2) toilet accessories; and (3) toilet instruments. The items enumerated in entry 478 scents and perfumes, powders, snows, scented hair-oils, scented sticks, cosmetics and soaps - all come under the first category. The hairpins and combs intended for being worn in hair come under the second category.'
15. The combs with which the Division Bench was concerned, being strips of wood, bone, horn etc. with teeth used for disentangling, cleaning and arranging the hair, or keeping it in place, come under the third category. As the expression 'toilet requisites' was to be interpreted on the principle of ejusdem generis, it was held that it would come under the first category of toilet preparations like scents and perfumes and, therefore, such a hair comb was not covered,
16. Thus, the other line of decisions only emphasises how wide is the scope of 'toilet'. We were repeatedly told by the learned Advocate General that the expression 'toilet articles' has only one sense, but the aforesaid decision does not bear him out. The expression is of indefinite import and that is why the controversy in the present case can be resolved only by considering the exact import of the expression 'toilet article' in the context of entry 21A. If any analogy can be drawn it can be only from the first set of decisions which we have already referred to starting from C. C. Mahajan and Co. v. The State of Bombay, ( 9 S.T.C. 133.) where cosmetics and toilet articles were used in the same entry in the same collocation or in close association and which close association has once again been restored by the Legislature in entry 21A.
17. If we are to interpret entry 21A on its plain terms it is clear that 'toilet articles' are mentioned as including hair cream and hair tonic. However, there is a semicolon and then follows the words, 'perfumes, depilatories and cosmetics.' The expression 'cosmetics' even would not have a very wide sense because it is preceded by words, 'perfumes, depilatories' and even the learned Advocate-Generaldid not place his case so high by relying upon the expression 'cosmetics' by contending that cosmetics would include tooth-paste and tooth-brush in its meaning. The expression is obviously used in a narrow - sense when it is preceded by the words 'perfumes and depilatories'. There is further exclusion of three items from this wide list starting from 'toilet articles' and ending with 'cosmetics'. The first exclusion is of soap, and the second of hair-comb and the third of hair-oil. The very fact of exclusion suggests that they are within the scope of this list mentioned in entry 21A, but as the Legislature wanted that these goods should be charged at the lower rate they are taken out of entry 21A and put in at their proper places at the various entries. Even these excluded articles bear the stamp of articles being of direct or independent use in the process of toilet in the limited sense of grooming a person so as to make him presentable on some occasion or in the sense of beautifying his appearance. We have already considered in our previous decision that hair-combs also served this purpose as they could be directly used for grooming a man. Soap also, while it cleanses a person, also grooms him, if it is a soap of the family of toilet articles. There can be no dispute about hair-oil which was always considered as 'toilet article' as held in the aforesaid decision in Commissioner of Sales Tax v. Sadhna Aushadhalaya ( 14 S.T.C. 813), to which we have already referred. The only controversy in the present case is that the learned Advocate-General argues that ejusdem ganeris rule has no application and, therefore, there is no rule of construction on which the expression 'toilet articles' can be narrowed down. On the other hand, Mr. Mehta on behalf of the assessee invokes the rule of noscitur a sociis. These rules have been well explained by his Lordship Gajendragadkar, J., (as he then was) in Slate of Bombay v. Hospital Mazdoor Sabha (A.I.R. 1960 S.C. 610 at p. 613.). His Lordship observed that the rule of construction noscitur a sociis according to Maxwell, meant that when two or more words which were susceptible of analogous meaning were coupled together, they were understood to be used in their cognate sense. They took as it were their colour from each other, that is, the more general was restricted to a sense analogous to a less general. The same rule was thus interpreted in 'Words and Phrases' (Volume XIV, page 207) :
'Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that a meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis. In fact, the latter maxim is only an illustration or specific application of the broader maxim noscitur a sociis.' .. .. ..
'It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity the rule of construction in question cannot be pressed into service.'
18. We must bear these principles in mind. In the present case, as we have already pointed out, the word 'toilet' is of indefinite import and capable of various types of meaning. It is from the context that we have to find out the meaning of this ambiguous word, which is capable of more than one interpretation that we must invoke this well-settled rule of construction, as the expression 'toilet articles' has not been used singly, but only in close association with 'cosmetics'. All the items which are mentioned from 'toilet articles' to 'cosmetics' are only those articles which are of direct use in the process of grooming a man. Even the excluded items which we have already referred to bear the stamp of this analogous sense. The learned Advocate-General has vehemently argued that entry 21A does not start with cosmetics first, but begins with toilet articles and ends with cosmetics. That would be material if we were to apply the doctrine of ejusdem generis. We, however, apply the wider doctrine of noscitur a sociis to find out the real meaning of the phrase 'toilet articles' in the context of its use in close association with these other words and where 'cosmetics' even have been used in the narrower sense. In that view of the matter, we must hold that the words 'toilet articles' would have a restricted meaning as those articles which are of direct use in the process of toilet, that is the process of grooming a person by beautifying his appearance. The process of toilet would not amount to mere cleansing of a person, for giving any wider meaning. If the Legislature wanted a very wide inclusion, it could have easily used the expression 'toilet requisites'. As we have already mentioned, even the words of exclusion support this narrower meaning. We must also bear in mind that if all the words used by the Legislature can be given sense on the basis of a strict construction, there is a presumption against any wider inclusion in such a taxing statute. Even if the language is said to be capable of two meanings, one a wider and the other a narrower one, we should resolve the ambiguity in favour of the citizen. This principle of construction is too well-settled. In Empress Mills v. Municipal Committee, Wardha (A.I.R. 1958 S.C. 341 at p. 347.), if was pointed out that the expression 'terminal' had two meanings. Even then the construction to be placed on the term was held to be that which favours taxpayers, in accordance with the principle that a taxing statute must be strictly construed and every case of doubt must be resolved in favour of the taxpayer. Their Lordships there quoted the famous passage in Crawford on Statutory Constructions at page 504 in that context.
19. The learned Advocate-General urged before us that if we look to the history of this legislation, there would be no doubt left in our mind as to the legislative intent, which is clearly of a wider inclusion in the expression 'toilet articles'. The learned Advocate-General traced the history right from the beginning in this connection of the corresponding entries. In the Bombay Sales Tax Act, 1946, item 6 of Schedule I specified 'perfumery, cosmetic and toilet articles, except soap and other articles as may be specified by the Provincial Government by notification in the Official Gazette.' Thus 'cosmetics and toilet articles' are in the same collocation in entry 6. In Plastella & Co. v. State of Bombay, ( 10 S.T.C. 511) we find that Schedule II to the Bombay Sales Tax Act, 1952, as it was unamended had introduced item No. 30 in the following words :-
'Perfumery (excluding synthetic essential oils), cosmetic and toilet articles, except soaps and other articles as may be specified by the State Government by notification in the Official Gazette.'
20. As we find from that decision, there was a notification dated 1st November, 1952, under which all combs, other than those intended for being worn in the hair, had been excluded from this entry 30. Thereafter in the Bombay Sales Tax Act, 1953, we find two entries 39 and 66. Entry 39 provides a lower rate and mentions :
'Toilet articles except such articles as may be specified by the State Government by notification in the Official Gazette.'
21. Entry 66 which carries a higher rate mentioned :
'Perfumes, depilatories and cosmetics (except hair-oils).'
22. Thus, a division was made by taking 'toilet articles' in entry 39 for a lower rate and 'cosmetics' in entry 66 to Schedule for extracting a higher rate. The same scheme continued in the Bombay Sales Tax Act, 1959, as it stood before the amendment by Gujarat Act 25 of 1962. Entry 7 of Schedule E and entry 19 corresponded with the entries 39 and 66 respectively. Entry 7 was in the following terms :
'Toilet articles including hair cream, hair tonic and hair oil (but excluding soap).'
23. While entry 19 mentioned :
'Perfumes, depilatories and cosmetics (except soap and articles specified in entry 7 in this Schedule).'
24. Thus, it is clear that before the present entry 21A was brought in the Act of 1959 by the Gujarat Amendment Act 25 of 1962, this topic was covered by two separate entries 7 and 19 or old entries 39 and 66, even though in the original Act of 1946 there was a combined entry 6 as at present. It may also be noted that the old entry 7 in the 1959 Act is now restricted only to hair-oil, after the 1962 amendment and hair-oil has been specifically excluded from entry 21A. The learned Advocate-General, therefore, argued from this legislative history that the Legislature has now combined these two entries with the obvious purpose of augmenting the revenue so that both the 'toilet articles' and 'cosmetics' carry higher Fate of tax, i.e. 10 nP. and 3 nP. general sales tax as per entry 21A, by taking out toilet articles from the scope of old entry 7, which is now restricted to hair oil. The learned Advocate-General referred to the statement of objects and reasons, even though it may not be relevant for construing entry 21A as such. The learned Advocate-General pointed out that the said statement is relied upon to show prevailing circumstances, as it was specifically mentioned therein that in order to augment the revenue and to meet with the requirement of the Third Five Year Plan it was proposed to increase the existing rate of tax on sales and purchases of certain classes of goods and that is why the amendment was done, There can be no dispute that 'toilet articles' as such which fell under entry 21A would carry a higher rate of tax as provided in that entry. That, however, does not solve our problem, which is to find out the meaning of the expression 'toilet articles' when the Legislature uses it in close association with other articles, especially 'cosmetics'. That meaning was judicially noticed right from C. C. Mahajan and Co. v. The State of Bombay ( 9 S.T.C. 133) as per the interpretation of the Bombay High Court, that 'toilet articles' are articles for cleansing and grooming a person. They cannot take in their scope articles which are not for grooming at all but merely for cleansing. Such wide inclusion must be specifically made by the Legislature, if this accepted sense of 'toilet articles' is to be departed from and as there cannot be a presumption of any implied alteration of law. The learned Advocate-General even went to the length of arguing that the Legislature could never have reduced the tax by putting all 'toilet articles' in entry 21A because those toilet articles in the wider sense would now on a restricted construction go to the residuary articles in entry 22 and would attract a much lower rate than which was attracted to 'toilet articles' in the unamended entry 7. This argument begs the question as it proceeds on the assumption that a wider meaning was to be given to the expression 'toilet articles' in entry 7. In fact, the learned Advocate-General has departed from the judicial interpretation given in C. C. Mahajan and Co. v. The State of Bombay ( 9 S.T.C. 133) by giving a wider meaning. It is not necessary for us to go into this question at this stage. It would suffice to say that when 'toilet articles' are used in close association with 'cosmetics' and when all of them attracted such a high rate, the legislative intention would be clearly to cover only those articles, which groom a man and which beautify appearance and that entry 21A would not cover such 'toilet articles' which have no direct grooming effect at air and which are merely used for cleansing any part of a person, even like toilet-paper.
25. In that view of the matter our interpretation of the relevant entry 21A is that 'toilet articles' under that entry would cover only those articles which are of direct use in the process of grooming a person by beautifying his appearance and that expression is not used in a wider sense of articles which collectively go in making one's toilet or which are used for merely cleansing one's person.
26. The learned Advocate-General next argued that even on that narrow interpretation tooth-brush and tooth-paste would clearly fall within the expression 'toilet articles'. As we have already pointed out from the passage in Somasundara Mudaliar v. The State of Madras, ( 14 S.T.C. 943) the primary function of a tooth-brush and tooth-paste when used together or even independently, would be to cleanse the teeth. The primary function is of dental hygiene and the process is not one for grooming a person. The learned Advocate-General argued that in such a case the very act of cleansing the teeth results in grooming a person. We cannot accept this contention of the learned Advocate-General. In fact, we are interpreting a taxing statute of this kind where we should take the words as used in the ordinary common parlance. A tooth-brush is not normally used independently of a tooth-paste or powder or dentifrice to cleanse teeth. The learned Advocate-General vehemently argued that it is a wrong approach to decide the scope of any entry in a taxing statute by reference to the use and we must only find out what is meant by that article in the commercial world in common parlance. Ordinarily the learned Advocate-General is right in his contention. But the said argument, however, does not help him in the present case as the Legislature has used the words 'toilet articles' which are 'of' or 'for' use in the toilet. We have already stated that it must be an article of direct use in the process of grooming. In that view of the matter tooth-brush or tooth-paste cannot be said to groom a person even if they cleanse the teeth. Therefore, the Tribunal was wrong in holding that these articles were toilet articles in the light of the sense in which we have interpreted entry 21A.
27. The further question which arises before us is as regards the Palmolive shampoo. The Tribunal has in its judgment pointed out a passage from Encyclopaedia of Chemical Technology, Volume 12, page 222, as under :
'The meaning of 'shampoo soaps' in the above volume is as under : '... The soaps used for shampooing the hair are essentially the same as those described under 'soaps'. (See Cosmetics, Volume 6, page 550, soap). They are available in several forms; bar, cake, liquid, powder (or granules) and jelly. Although there will undoubtedly always be number of individuals who will wash their hair with any cake or soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shaved down, the granules are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentration ...''
28. It is, therefore, clear that this kind of shampoo is obviously soap. The Tribunal, however, mentioned in para. 10 of its order that even though some of the ingredients which constituted soap and shampoo might be common, the proportion of the ingredients would certainly be different and shampoo would also contain some ingredients so as to leave the hair soft and lustrous; it, therefore, could not be considered to be identical with liquid soap. The Tribunal finally mentioned that the intention of the Legislature in using the expression 'soaps' in entry 28 of Schedule C is, therefore, to include only those articles which are in common parlance known and sold as soaps of different varieties. Shampoo, therefore, cannot be considered to be soap within the meaning of entry 28 of Schedule C and will not be excluded from toilet articles. The reasoning of the Tribunal really amounts to recasting and reading the entry for soap in entry 28 of Schedule C as soap, excluding 'toilet articles', i.e., toilet soap. This is not what the Legislature has done. In entry 21A 'toilet articles' excluding soap are shown and it is not the other way round. Soap may be a toilet article and shampoo may also be a toilet article. We are not, however, concerned with what is the meaning of 'toilet articles' in ordinary common parlance. We are concerned with entry 21A as it stands which specifically provides only for 'toilet articles' other than soap. Once it is found that the toilet article in question is soap, it would be clear that it would not fall in entry 21A, but that it would be directly taken to entry 28 of Schedule C. The question in such cases is not of a conflict between two specie entries which is to be resolved by finding out what the article substantially is and as to how it is known in commercial parlance. In the present case the Legislature itself provides a particular entry by carving out the general entry which attracts a higher rate in entry 21A, which is of 'toilet articles' other than soap. The effect of this is that soap is taken out of the purview of 'toilet articles' in entry 21A and is brought in entry 28 of Schedule C, which would, therefore, mean all soaps, including such toilet soaps. The principle in such cases is not one of pith and substance, but the analogous principle of direct impact. Once the article is found to be soap, it can never fall in entry 21A, which is of 'toilet articles' other than soap, and it must thereafter specifically fall in entry 28 in Schedule C which is for all soaps, including such toilet soaps or shampoos. Overlapping is bound to be there because it is a 'toilet article' which is sought to be excluded in entry 21A. The Tribunal was, therefore, wrong even on this point as it held that shampoo was a 'toilet article' in entry 21A and that it was not a soap.
29. In the result our answer to the first and the third part of question No. (1) is in the negative and to the second part is in the affirmative, that is to say, Palmolive shampoo is not a toilet article within the meaning of entry 21A of Schedule E but is a soap within the meaning of entry 28 of Schedule C and is not covered by the residuary entry 22 of Schedule E and it is liable to be taxed accordingly. As regards question No. (2) our answer to the first part is in the negative and to the second part is in the affirmative, that is to say, Colgate tooth-brusli and Colgate toothpaste are not toilet articles falling in entry 21A of Schedule E, but are covered by the residuary entry 22 of Schedule E and are liable to be taxed accordingly. The reference is accordingly answered. The State shall pay the costs of this reference to the assessee.
30. Reference answered accordingly.