Khanna, J. - (1.) This appeal by special leave is directed against the judgment of Gujarat 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 these were articles meant for cleansing 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 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 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 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 (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 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 answer of the High Court on the first question was that Palmolive shampoo was not a toilet article within the meaning of Entry 21A 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 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 Schedule E but were covered by the residuary Entry 22 of Schedule E and were liable to be taxed accordingly.
(3.) 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 Schedule E 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.;