KHANNA,J. - (1.) THIS appeal by special leave is directed against the judgment of Gujarat High Court in a reference made to it under S. 61 of the Bombay ST Act, 1959 (Bombay Act 51 of 1959) as amended by the Bombay ST (Gujarat Amendment) Act, 1962 (Gujarat Act 25 of 1962) (hereinafter referred to as the Act).
(2.) THE respondent made an application under S. 52 of the Act to the Dy. CST 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 Dy. CST that Palmolive shampoo was a kind of liquid soap and was covered by entry 28 of Sch. 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 Dy. CST, who held that the aforesaid three articles were toilet articles within the meaning of entry 21A 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 Dy. CST. 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 dt. 15th July, 1964 is a toilet article within the meaning of Entry 21A of Sch. E or is soap within the meaning of Entry 28 of Schedule C or is covered by entry 22 of Sch. E to the Bombay ST 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 dt. 15th July, 1964 are toilet articles within the meaning of Entry 21A of Sch. E or are covered by Entry 22 of Sch. E to the Bombay ST 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 of Sch. E to the Act but was soap within the meaning of Entry 28 of Sch. C and was liable to be taxed accordingly. As regards question No. 2, the answer of the High Court was that Colgate tooth brush and Colgate tooth paste were not toilet articles falling in entry 21A of Sch. E but were covered by the residuary entry 22 of Sch. E and were liable to be taxed accordingly. In 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 21A of Sch. E to the Act. As against that Mr. Chagla on behalf of the respondent has convassed for the correctness of the view of the High Court.
(3.) WE may at this stage refer to three entries with which we are concerned. Entry 28 of Sch. C to the Act pertains to soaps. Entry 21A of Sch. E to the Act deals with the following goods : "21A. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in entry 28 in Sch. C and hair oil as specified in entry 7 of this schedule)". Entry 22 is as residuary entry and relates to "all goods other than those specified from time to time in Schs. A, B, C and D in the preceding entries" ;