SATISH CHANDRA, J. - (1.) THE Additional Judge (Revisions) Sales Tax, Agra, has submitted this statement of the case under section 11(3) of the U.P. Sales Tax Act for the opinion of this court on the following question of law. "Whether Tinopal is a chemical taxable at 7 per cent. covered under item No. 4 of Notification No. S.T. 6438/X-1012-1962 dated 1st December, 1962, or a washing material taxable at 4 per cent. under item No. 32 of the same notification ?"
(2.) THE dispute arises in respect of the assessment year 1964-65. The assessee deals in several commodities including Tinopal. The assessing authority held that Tinopal was a chemical taxable at 7 per cent. The Judge (Revisions), however, reversed the finding. According to him, Tinopal was a washing material taxable at 4 per cent. A similar question arose before a Bench of this court in M/s. Har Narain Purshottam Dass Colour Co., Sadhwara Street, Farrukhabad v. The Commissioner of Sales Tax, U.P., Lucknow ([1971] 28 S.T.C. 77) (S.T.R. No. 614 of 1965, decided on 11th February, 1969). It was held that for the assessment years 1958-59 and 1959-60, Tinopal was a chemical liable to tax as a chemical. By Notification No. 905/X dated 31st March, 1956, issued under section 3-A, U.P. Sales Tax Act, the State Government declared that the turnover of "chemicals of all kinds" among other commodities would be liable to tax at one anna per rupee at the point of sale by the importer where the goods were imported from outside Uttar Pradesh and at the point of sale by the manufacturer where the goods were manufactured in Uttar Pradesh. This entry was interpreted to include "Tinopal" in Har Narain's case ([1971] 28 S.T.C. 77) referred to above. Pathak, J., held that Tinopal brands are optical whitening agents of varying chemical structure, giving a wide range of white shades from greenish blue to violet, and they are used to improve the whiteness of bleached textiles. Tinopal is also used in dyeing textiles. It was observed that fabrics containing white effect threads can be much improved by applying Tinopal in the washing or clearing bath and the preliminary or after-bleaching process can in some cases be shortened or omitted altogether. He observed that in the absence of any material on the record, it may be taken that what the manufacturer represents the product to be capable of achieving is what influences the consumer to buy it. He held that Tinopal was understood in the mercantile community as a chemical. It was urged in that case that Tinopal is not a chemical and can be properly described as washing material. Pathak, J., took the view that a chemical may also be used as washing material, and the mere circumstance that it is possible to distinguish Tinopal as washing material cannot take it out of the category of "chemicals of all kinds". On this finding he held that Tinopal fell within the entry of "chemicals of all kinds" in the notification dated 31st March, 1956. Gulati, J., observed that Tinopal is an article of everyday use, its main use being in the laundry. In the popular sense it is a washing material. It is described by its manufacturer as a whitening agent, but whitening is also one of the main purposes of washing clothes. The fact that the whitening brought about by Tinopal is a chemical process is of no consequence because that is not the criterion upon which entries in the notifications under the U.P. Sales Tax Act are to be interpreted. It was then observed that with effect from 1st April, 1960, washing materials were separately listed in another notification under section 3-A of the Act. If an article falls in a specific classification of "washing materials" it would cease to belong to the general category of chemicals. In the assessment years 1958-59 and 1959-60 there was no such separate classification. Tinopal was hence held to be governed by the general entry "chemicals of all kinds".
(3.) IT appears that the notification of 1st April, 1960, creating a separate entry of washing materials was modified by another Notification No. S.T. 6438/X-1012-1962 dated 1st December, 1962. Under it washing materials were further sub-divided into two entries. Entry No. 20 stated "soap other than washing soap" and it imposed a tax of 7 per cent. Entry No. 32 stated "washing soaps and other materials used for washing purposes" and this was taxable at 4 per cent. "Chemicals of all kinds" continued to be taxable at 7 per cent. under the original notification.;