ROOPKALA INDUSTRIES Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an appeal against the order of the Collector of Sales Tax deciding an application made by the appellants under Section 27 of the Bombay Sales Tax Act, 1953. The appellants sold to Messrs. Mulchand and Sons on 19th June, 1954, certain quantities of their talcum powders under the names "Roopkala Bouquet", "Roopkala Ordinary" and "Roopkala Medium". They contended that these powders should be taxed under entry 39 of Schedule B to the Bombay Sales Tax Act, 1953, as toilet articles, and not under entry 66 as cosmetics. These two entries are reproduced below : -

(2.) THE question that arises in this case is what meanings are to be given to the expressions "toilet articles" and "cosmetics" used respectively in entries 39 and 66. Mr. B.C. Josh) for the appellants has contended that as cosmetics were taxed at higher rates they must be regarded as luxury articles., while the articles sold by his clients are ordinary articles of toilet, and that if it be held that they are cosmetics, they should also be held to be toilet articles. He contended that toilet articles are specific instances of cosmetics, and that, therefore, the provision relating to toilet articles should apply. Mr. K. A. Kabe for the respondent has sought to support the order of the Collector by referring to the grounds of appeal of the appellants in which it has been stated, "your petitioners are small dealers dealing in face powders commonly called as toilet powders." The appellants thus, it is argued, have admitted that the powders in question are face powders. It has been admitted by Mr. Joshi that the powders sold in the three varieties are almost similar in composition and that they should all be treated similarly. There being no definition of the word "cosmetic" in the Act or elsewhere, and there being no English or Indian decisions on the point. Mr. Kabe has drawn our attention to the definition of the word "cosmetic" in several American publications and authorities. Those publications and authorities are referred to below. A product called "Protex" was also shown to us. It is manufactured by the Colgate -Palmolive Co. and called an all -purpose toilet powder for after -bath, for the body, for hot weather comfort and as a face powder. Thus the same powder can be used on the body after bath, etc., and also as face powder. It not being shown that the powders in question cannot be used as face powders, Mr. Kabe has contended that face powders being clearly cosmetics, these powders must be regarded as falling under entry 66.

(3.) THE following American publications and authorities have been referred to by Mr. Kabe. The Federal Food, Drugs and Cosmetics Act defines the term "cosmetic" as meaning (1) articles 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 altering the appearance, and (2) articles intended for use as a component of any such articles, except that such terms shall not include soap. "Modern Cosmetics" by E. G. Thompson (1947) published by the Drug and Cosmetic Industry, New York, has classified cosmetics into emulsion, powders, sticks, cakes, oils, mucilages, jellies, suspensions, paster, soap and solution, and powders have been classified as face powders, talcum powders, tooth powder. The said publication shows that both face powder and toilet powder contain a large percentage of talcum. Similarly, Maison G. de Navarre's "The Chemistry and Manufacture of Cosmetics" (1941) published by D. Van Nostrand Company, Inc., New York, defines cosmetics as creams, lotions, powders, make -up, soap, miscellaneous (permanent wave, dental, depilatory, bath, mask, manicure, sun -tan) and powders have been divided into two classes, face powders and miscellaneous, the latter being sub -divided into (a) talcum, (b) body, (c) baby, and (d) foot. The Van Nostrand Chemists' Dictionary published by D. Van Nostrand Company, Inc., New York (1953) defines cosmetics as a material, generally a mixture of substances, used to enhance or preserve beauty by application to the face, hair, hands and other parts of the body. Remington's Practice of Pharmacy (1948) edited by E. Fullerton Cook and Eric W. Martin and published by the Mack Publishing Company, Easton, classifies powders into face powders, talcum powders, body powders, foot powders, tooth powders and others. These publications sufficiently show that in America at least the meaning given to the word "cosmetic" is so wide that it would include not only face powders but toilet powders as well. Mr. Joshi has contended that the meaning given in America to the expression is too wide for being adopted in this country. In Chambers's 20th Century Dictionary cosmetic is defined as "(adj.) purporting to improve beauty, esp. that of the complexion ; -(n.) a preparation for the purpose". Toilet has been defined in the said dictionary as a cloth for the shoulder during hair -dressing: a toilet -cover : a toilet -table : a dressing -table with a mirror : the articles used in dressing : mode or process of dressing: a reception of visitors during dressing: the whole dress and appearance of a person, any particular costume : a dressing -room, bathroom, or lavatory: the cleansing and dressing of a wound. In Webster's International Dictionary, Second Edition, ''cosmetic" is defined as "any external application intended to beautify and improve the complexion, skin or hair". The word is derived from Greek word kosmetikos, meaning skilled in decorating, and kosmos meaning order or ornament. Toilet powder has been defined in the ' said dictionary as "a fine powder, usually with soothing or antiseptic ingredients, used to sprinkle or rub over the skin of the body, as after bathing, usually distinguished from powder used as a cosmetic for the face". We see here a distinction is made between a cosmetic and toilet powder. The word "cosmetic", as its root meaning shows, is connected with the idea of beauty or beautifying, while a powder intended essentially to be used for dusting the body or any part of it after bath, etc., need not have that significance. The powders with which we are concerned can no doubt be and are used for dusting the body after bath, etc., but there is nothing to show that they are not used or intended to be used as a face powder as well. One of the tins produced before us is marked Roopkala Toilet Powder, with the words inscribed on it "for beauty, toilet and nursery". The letter -head on the paper used by the appellants says that they are dealers in cosmetics and drugs. It is admitted that they do not deal in any powders other than the kinds of powders mentioned in the order of the Collector of Sales Tax. In our opinion, even if the connotation accepted in America be considered to be too wide, the articles in question can undoubtedly be regarded as aids to beautification, and therefore, as cosmetics. It may be possible to regard them also as toilet articles within the meaning of entry 39. In our opinion, the latter expression is intended for a wider range of objects than is covered by the expression "cosmetics". In this sense cosmetics may legitimately, in our opinion, be regarded as a specific case of toilet articles, and in this view the more specific provision in item 66 rather than item 39 will apply. We do not, therefore, think that the decision arrived at, by the Collector of Sales Tax can be said to be erroneous. The appeal is, therefore, dismissed.