Gulati, J. - (1.) THIS is a reference under Section 11 (4) of the U. P. Sales Tax Act at the instance of the Commissioner, Sales Tax, U. P. Lucknow. The following question has been submitted for our opinion :- "Whether in the facts and circumstance of the case hair pins, hair clips and are taxable as cosmetics and toilet requisite as defined in item No. 6 of Notification No. 905/X dated 31st March, 1956 and will be taxable at 6 per cent, or 7 per cent.?"
(2.) THE assesses carried on the busi ness of manufacture and sale of hair pins, hair clips and Tikulis of plastic and other allied materials. The dispute relates to the rate of tax on the turnover of the articles mentioned above, during the period 1-4-196C to 31st March, 1961. The assessee's conten tion is that these articles are unclassified goods and are taxable @ 2 per cent, whereas the contention of the Department is that they arc toilet requisites and are taxable @ 6 per cent. or 7 per cent, under Notification No. 905/X dated 31st March, 1956. The assessee's con tention was not accepted by the Sales Tax Officer but was accepted on appeal by the Ap pellate Authority, whose decision the Re vising Authority has also upheld. The Com missioner is aggrieved and hence this refer ence. A Division Bench of this Court in the case of Plastic Products Ltd. v. Commr. of Sales Tax, U. P. Lucknow, 19 STC 480 = (AIR 1968 All 3) has held that only those articles which are used up or consumed in the process of application can be called as "Cosmetics and toilet requisites". The Supreme Court on the other hand in the case of State of Gujarat v. Prakash Trading Co., 30 STC 348 = (AIR 1973 SC 960 = 1973 Tax LR 1813) has held that tooth brush is a toilet requisite. Now a tooth brush is not used up or consumed in the process of application like other articles of cosmetics, such as face powder, creams etc. The view taken by this Court in the case of Plastic Products Ltd. (supra) does not, therefore, seem to be in con sonance with the view of the Supreme Court and, as such, this case was referred to a larger Bench by a Division Bench before which it came up for hearing originally. That is how this case has come up before us.
(3.) NOTIFICATION No. 905/X, dated 31st March, 1956 is a notification under Section 3-A of the U. P. Sales Tax Act (hereinafter refer red to as the Act), issued by the State Govern ment, which prescribes that the turnover in respect of the goods specified in the list at tached thereto will be taxable at the rate of one and per rupee at the point of sale by the manufacturer in the case of goods manufac tured in the State of U. P. and at the point of sale by the importer in the case of good imported in the State of Uttar Pradesh. The rate of one and per rupee has been subse quently changed to six per cent, or seven per cent. Item No. 6 in the list is Cos metics and toilet requisites". The short ques tion, therefore, that we have to answer is as to whether hair clips, hair pins and Tikulis fall within this entry? namely, whether they are cosmetics and toilet requisites. At the hearing the learned Standing Counsel stated that the Department does not press its claim with regard to the Tikulis so that we are only left with hair pins and hair clips.;