GULATI, J. - (1.) THIS and the connected reference submitted to this court under section 11(1) read with section 11(3) of the U.P. Sales Tax Act at the instance of the Commissioner by the Additional Judge (Revisions), Sales Tax, Agra, raised a common question of law arising cut of assessment for the years 1956-57 and 1957-58 in respect of the same assessee. They are, therefore, being disposed of by this common order. The common question that has been submitted for the opinion of this court is : "Whether in view of the facts and circumstances mentioned above, 'tooth-powder' is 'cosmetic or toilet requisite' and whether the Additional Judge (Revisions) Sales Tax, Agra, was justified in treating the tooth-powder as an unspecified commodity liable to tax at all points of sale ?"
(2.) THE assessee carries on the business of manufacture and sale of tooth-powder under the name and style of Sarin Chemical Laboratory at Agra. The trade name under which the tooth-powder is marketed is Sarin Dant Manjan. There is no dispute about the turnover of this commodity. The dispute relates only to the rate of tax. The assessee's contention is that the turnover of his tooth-powder is liable to tax at the rate of 3 pies per rupee under section 3 of the Act while the Sales Tax Officer levied the rate of 0-1-0 per rupee. The Sales Tax Officer did not specify the reason for adopting this higher rate of tax, but apparently he did so treating the tooth-powder to be a commodity taxable at single point under section 3-A of the Act. Before the Judge (Appeals) the Sales Tax Officer stated that he had treated the tooth-powder to be an item of cosmetics falling within entry 6 of the Notification No. 905/X dated 31st March, 1956. The Judge (Appeals) held that the tooth-powder manufactured by the assessee was really a medicine and not an article of cosmetics. The Judge (Appeals) in arriving at the conclusion that the tooth-powder was a medicine was influenced by the fact that the ingredients out of which the tooth-powder was prepared were such as made it more of medicine for maintaining dental health, rather than an article of cosmetics which is meant to beautify the human body. As medicine was not one of the single point articles notified under section 3-A of the Act, he held the turnover of the tooth-powder to fall under section 3 of the Act which prescribes the general rate of 3 pies per rupee for all commodities. The Commissioner felt aggrieved and went up in revision under section 10 of the Act. The Additional Judge (Revisions) expressed the view that the tooth-powder manufactured and sold by the assessee was neither an article of cosmetics nor a medicine hut an unspecified item and as turnover of an unspecified item is assessable under section 3 at the rate of 3 pies per rupee, he did not interfere with the rate applied by the Judge (Appeals) and accordingly dismissed the revision application of the Commissioner. The Commissioner of Sales Tax has now come up in reference before us. The short question that falls for our consideration is as to whether the tooth-powder manufactured and sold by the assessee in the trade name of Sarin Dant Manjan is an article falling within entry 6 of the Notification No. 905/X, dated 31st March, 1956, and as such is taxable at the rate of 0-1-0 per rupee. Under section 3, which is the charging section, the sale of every commodity is taxable at all points at a general rate which at the material time was 3 pies per rupee. Under section 3-A, the State Government has been invested with the power to notify in the Official Gazette that the turnover in respect of any goods or class of goods shall be taxable only at a single point in the series of sales and at a rate different from the one prescribed under section 3 subject to a maximum which at the material time was 0-1-0 per rupee. In exercise of this power under section 3-A, the State issued Notification No. 905/X on 31st March, 1956, with which was appended a long list of items and item No. 6 whereof was "cosmetics and toilet requisites", the turnover whereof was taxable at the rate of 0-1-0 per rupee at the point of sale by the importers in the case of goods imported from outside Utter Pradesh and at the point of sale by the manufactured in the case of goods manufactured in Uttar Pradesh. In the instant case we are concerned with the case of a manufacturer.
(3.) THE expression "cosmetics and toilet requisites" has not been defined in the Act. We have, therefore, to ascertain its meaning from other sources. In the Webster's International Dictionary one of the meanings assigned to cosmetic is "a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth." The same dictionary gives one of the meanings of "toilet" as "an act or process of dressing, especially formerly of dressing hair, and now usually cleansing and grooming of one's person." The word "toiletry" according to that dictionary, means "an article or preparation used in making one's toilet such as soap, lotion, cosmetic, tooth-paste, shaving cream, cologne, etc." According to the dictionary meaning tooth-powder can certainly be regarded both as an item of cosmetic and toilet. It is used for cleaning the teeth which is a part of the body. Apart from the dictionary meaning, the words "cosmetics and toilet requisites" have become words of everyday use, the meanings whereof are well understood. It is a matter of common knowledge that tooth-paste or tooth-powder is an essential item of toiletry in the modern life. The manufacturers of dentifrices like tooth-paste and tooth-powder invariably claim medicinal properties for their products and some of them do possess some prophylactic and remedial properties but whether they do or do not possess the medicine) properties, claimed by their manufacturers, the fact remains that they are used for dental cleanliness which is an essential act of toilet. In fact, medicinal properties are claimed even in respect of a large number of items of cosmetics such as lotions, creams, snows and powders but that does not mean that such articles cease to belong to the range of cosmetics and become medicines. The word medicine also is a word of everyday use and we all know what medicine means. Act of brushing one's teeth with tooth-paste or tooth-powder is certainly not the same thing as taking or using medicine.;