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State Of Gujarat v. Prakash Trading Co., Ahmedabad .
Factual and Procedural Background
The respondent-dealer sought a determination under Section 52 of the Bombay Sales Tax Act, 1959 (as amended for Gujarat) regarding the appropriate rate of tax on sales of three specific products: Palmolive Shampoo (large size), Colgate Tooth Paste (giant size) and Colgate Tooth Brush (adult). The Deputy Commissioner of Sales Tax classified all three items as “toilet articles” falling under Entry 21-A of Schedule E, attracting a higher rate of tax. On appeal, the Gujarat Sales Tax Tribunal affirmed that view.
At the respondent’s request, the Tribunal referred two questions of law to the Gujarat High Court under Section 61 of the Act. The High Court held (i) Palmolive Shampoo is “soap” under Entry 28 of Schedule C, and (ii) Colgate Tooth Paste and Tooth Brush fall in the residuary Entry 22 of Schedule E, not under Entry 21-A.
The Commissioner of Sales Tax obtained special-leave to appeal to the Supreme Court, challenging the High Court’s answers insofar as they concerned the classification of all three goods.
Legal Issues Presented
- Whether Palmolive Shampoo (large size) is:
- a “toilet article” within Entry 21-A of Schedule E,
- “soap” within Entry 28 of Schedule C, or
- covered by the residuary Entry 22 of Schedule E.
- Whether Colgate Tooth Paste (giant size) and Colgate Tooth Brush (adult) are “toilet articles” under Entry 21-A of Schedule E or fall under the residuary Entry 22 of Schedule E.
Arguments of the Parties
Appellant (Commissioner of Sales Tax)
- All three items—Palmolive Shampoo, Colgate Tooth Paste and Colgate Tooth Brush—are “toilet articles” expressly covered by Entry 21-A of Schedule E.
Respondent (Dealer)
- Supported the High Court’s view: Palmolive Shampoo is “soap” (Entry 28, Schedule C) and the tooth paste and brush are not toilet articles but fall within the residuary Entry 22 of Schedule E.
- Attempted to distinguish the Supreme Court precedent in Sarin Chemical Laboratory on the ground that it arose under the U.P. Sales Tax Act, not the Bombay/Gujarat Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sarin Chemical Laboratory v. Commissioner of Sales Tax, U.P. (1970) 2 SCC 403; (1971) 1 SCR 731; (1970) 26 STC 339 |
Tooth powder is a “toilet requisite” based on dictionary meanings of “cosmetic”, “toilet” and “toiletry”. | The Court held that the same reasoning applies to tooth paste, and by analogy, a tooth brush used for cleaning teeth is also a toilet article. |
| Commissioner of Sales Tax v. Vicco Laboratories (1968) 22 STC 169 (Bom) |
Dentifrice (tooth powder) used for cleaning teeth is a toilet article under the Bombay Sales Tax Act. | Relied on to demonstrate that even under the Bombay Act, dental preparations for cleaning teeth are regarded as toilet articles; the Supreme Court noted that Sarin had approved this Bombay decision. |
Court's Reasoning and Analysis
1. Colgate Tooth Paste and Tooth Brush
The Court regarded the issue as squarely governed by its earlier decision in Sarin Chemical Laboratory, which treated tooth powder as a toilet article. Dictionary definitions show that preparations or implements used for cleansing parts of the body, including teeth, fall within “toilet” or “toiletry”. The attempt to confine Sarin to the U.P. statute was rejected because neither the U.P. nor the Bombay Acts define “toilet article”; hence ordinary commercial parlance controls. The Court further dismissed the argument that a tooth brush is not indispensable for cleaning teeth; what matters is its common use for that purpose, bringing it within the concept of a toilet article.
2. Palmolive Shampoo
Endorsing the High Court’s reliance on the Encyclopaedia of Chemical Technology, the Court noted that shampoos are essentially liquid soaps produced by diluting or altering the physical form of ordinary soap. The variance in ingredient proportion does not alter its basic character. Consequently, Palmolive Shampoo is “soap” under Entry 28 of Schedule C, not a toilet article under Entry 21-A.
Holding and Implications
PARTLY ALLOWED – The Supreme Court set aside the High Court’s classification of Colgate Tooth Paste and Colgate Tooth Brush; both are declared “toilet articles” within Entry 21-A of Schedule E. The Court affirmed the High Court’s view that Palmolive Shampoo is “soap” within Entry 28 of Schedule C.
Implications: The respondent will be taxed at the rate applicable to “toilet articles” for the tooth paste and brush, and at the rate applicable to “soap” for the shampoo. No broader doctrinal change was announced, but the judgment confirms that, under the Bombay/Gujarat Sales Tax Act, dental cleansing products and implements are treated as toilet articles in line with national precedent. Parties were left to bear their own costs in both the High Court and Supreme Court.
H.R Khanna, J.— This appeal by special leave is directed against the judgment of Gurjarat High Court in a reference made to it under Section 61 of the Bombay Sales Tax Act, 1959 (Bombay Act 51 of 1959) as amended by the Bombay Sales Tax (Gujarat Amendment) Act, 1962 (Gujarat Act 25 of 1962) hereinafter referred to as “the Act”.
2. The respondent made an application under Section 52 of the Act to the Deputy Commissioner of Sales Tax for determination of the rate of tax payable on sale of five articles, including Palmolive Shampoo, large size, Colgate tooth paste, giant size and Colgate tooth brush for adult use. It was urged by the respondent before the Deputy Commissioner that Palmolive Shampoo was a kind of liquid soap and was covered by Entry 28 of Schedule C to the Act. As regards Colgate dental paste and Colgate tooth brush, the respondent submitted that those were articles meant for cleaning teeth and were not toilet articles. These contentions were repelled by the Deputy Commissioner, who held that the aforesaid three articles were toilet articles within the meaning of Entry 21-A of Schedule E to the Act and liable to tax accordingly. The Gujarat Sales Tax Tribunal on appeal took the same view as had been taken by the Deputy Commissioner. On application filed by the respondent, the following two questions were referred by the Tribunal to the High Court:
“1. Whether on the facts and in the circumstances of the case Palmolive Shampoo (large size) sold under Bill No. 505, dated July 15, 1964, is a toilet article within the meaning of Entry 21-A of Schedule B 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 : (1) Colgate Tooth Paste and (2) Colgate Tooth Brush sold under Bill No. 505, dated July 15, 1964, are toilet articles within the meaning of Entry 21-A 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 answer of the High Court on the first question was that Palmolive Shampoo was not a toilet article within the meaning of Entry 21-A of Schedule E to the Act but was soap within the meaning of Entry 28 of Schedule C and was liable to be taxed accordingly. As regards Question 2, the answer of the High Court was that Colgate tooth brush and Colgate tooth paste were not toilet articles falling in Entry 21-A of Schedule E but were covered by the residuary Entry 22 of Schedule E and were liable to be taxed accordingly.
3. In an appeal in this Court Mr Bhandare on behalf of the appellant has argued that all the three articles in question, namely, Palmolive Shampoo, Colgate tooth paste and Colgate tooth brush are toilet articles as mentioned in Entry 21-A of Schedule C to the Act. As against that Mr Chagla on behalf of the respondent has canvassed for the correctness of the view of the High Court.
4. We may at this stage refer to the three entries with which we are concerned. Entry 28 of Schedule C to the Act pertains to soap. Entry 21-A of Schedule E to the Act deals with the following goods:
“21-A. 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 oil as specified in Entry 7 of this Schedule).”
Entry 22 is a residuary entry and relates to “all goods other than those specified from time to time in Schedules A, B, C and D and in the preceding entries”.
5. So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the case of Sarin Chemical Laboratory v. Commissioner of Sales Tax, U.P (1970) 2 SCC 403, (1971) 1 SCR 731, (1970) 26 STC 339 It was held in that case that tooth powder is a toilet requisite and was liable to Sales Tax as such. Reference in this connection was made to the Dictionary meaning of the words “cosmetic”, “toilet” and “toiletry”. “Cosmetic”, according to Webster's International Dictionary, is “a preparation to beautify or 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, especially formerly of dressing hair and now usually cleaning and grooming of one's person”. “Toiletry”, according to the dictionary, is “an article or preparation used in making one's toilet such a soap, lotion, cosmetic, tooth paste shaving cream, cologne, etc.” It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in common parlance, tooth powder was considered to be an article of toilet. As such, the Court came to the conclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word “toilet” relied upon in the above case “as an act or process of cleaning of one's person” shows that a tooth brush which is meant for cleaning one's tooth is a toilet article.
6. Mr Chagla has tried to distinguish the case of Sarin Chemical Laboratory on the ground that that was a case under the U.P Sales Tax Act while we are dealing with a case under the Bombay Sales Tax Act. This submission is clearly untenable, because we are concerned with the concept of a toilet article as understood in common parlance. Neither the Bombay Sales Tax Act nor the U.P Sales Tax Act contained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory cannot be held to relate only to cases under the U.P Sales Tax, Act. Apart from that, we find that in the case of Sarin Chemical Laboratory this Court approved of the decision of the Bombay High Court in Commissioner of Sales Tax v. Vicco Laboratories (1968) 22 STC 169. In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleaning teeth was a toilet article. It would, therefore, follow that this Court has not its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleaning of teeth is a toilet article. We are also unable to accede to the submission of Mr Chagla that as teeth can also be cleansed without the use of tooth brush, the same is not a toilet article. The question with which we are concerned is not whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing one's teeth. If the tooth brush is, in fact, used for cleaning one's teeth, the same must be held to be an article of toilet.
7. The view taken by the High Court regarding shampoo that it constitutes soap, in our opinion, is well-founded. The High Court in this respect has referred to the following passage in the Encyclopaedia of Chemical Technology:
“... The soaps used for shampooing the hair are essentially the same as those described under ‘soap’. See Cosmetics Vol. 6., p. 550, soap. They are available in several forms; bar, cake, liquid, powder (or granuiles) and jelly. Although there will undoubtedly always be number of individuals who will wash their hair with any cake of 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 granulles are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentration......”
The High Court concluded from the above that Palmolive Shampoo was soap covered by Entry 28 of Schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would not alter the basic character of shampoo and take it out of the category of soaps.
8. As a result of the above, we partly accept the appeal and set aside the judgment of the High Court insofar as it relates to tooth paste and tooth brush. Both of them, in our opinion, are toilet articles within the meaning of Entry 21-A of Schedule E to the Act. We, however, uphold the judgment of the High Court insofar as the High Court has held that shampoo is soap within the meaning of Entry 28 of Schedule C to the Act. In view of the partial success of each party, we leave the parties to bear their own costs of this Court as well as in the High Court.
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