DWARKA PRASAD, J. - (1.) THE Board of Revenue for Rajasthan at Ajmer has referred the following question for the consideration of this Court: - "whether Bhimsaini Kajal, Nagjyoti & Baljyoti manufactured and sold by the assessee are a cosmetic or a medicine?"
(2.) BY the notification dated March 2, 1963 the State Government notified the various rates of tax which it intended to charge on different commodities and entries 13,59 and 65 of the aforesaid notification, which are relevant for our present purpose, are reproduced below: - "13. Medicines, Drugs & Pharmaceutical Preparations of all sorts. 2% xx xx xx 59. Perfumery, Cosmetic & all toilet soaps, tooth pastes including Manjan, Combes, Brushes, hair oils etc. 10% xx xx xx 65. Goods not covered by S. No. 1 to 64. 6% M/s. Murari Brothers (hereinafter referred to as 'the assessee') is the manufacturer of and a dealer in commodities like Bhimsaini Kajal, Nagjyoti and Baljyoti, which are different varieties of Kajal. In respect of the assessment year 1965-66, the Assistant Commercial Taxes Officer, D-Circle, Jaipur imposed sales tax on the taxable turn-over of the assessee in respect of the sale of Bhimsaini Kajal, Nagjyoti and Baljyoti at the rate of 10%, as in his view the aforesaid commodities were covered under item 59 of the notification dated March 2,1963. By his order dated January 21, 1966 the Assistant Commercial Taxes Officer rejected the plea of the assessee that the aforesaid three commodities were medicines or medicinal preparations. As appeal preferred by the assessee was accepted by the Deputy Commissioner (Appeals), Jaipur by his order dated October 31, 1966 as he was of the view that Bhimsaini Kajal and other two commodities referred to above did not fell under item 59 as they were not cosmetics but they had also preventive medicinal value. However, it was observed by him that the aforesaid three commodities were not sold as medicines under any prescription of a medical practitioner but were applied to the eyes as a precautionary measures. The Deputy Commissioner, therefore, held that the said commodities fell under item 65 of the Schedule annexed to the notification dated March 2, 1963 and were taxable at the general rate of 6%. The Board of Revenue on revision remanded the matter back to the Deputy Commissioner. But the Deputy Commissioner (Appeals) by his subsequent order dated May 22, 1969 maintained the view expressed earlier by his predecessor. The assessing authority again filed a revision petition before the Board of Revenue against the order of the Deputy Commissioner (Appeals ). Finally the Board of Revenue by its order dated March 6, 1974 held that all the three articles referred to above were covered under entry 59 and were chargeable to tax at the rate of 10% and the order of the Deputy Commissioner was set aside. The assessee filed an application under Section 15 (1) of the Act before the Board of Revenue and the present reference has been made on that application by the order of the Board of Revenue dated August 16, 1974. Before we proceed to decide the question raised before us, we would like to observe that under Section 15 (1) of the Act, the Board of Revenue is competent to make a reference in respect of 'any question of law arising out of such order of the Board of Revenue. In the present case, the finding of the Board of Revenue, in its order dated March 6, 1974 is that the three articles referred to above were not covered by entry 65 but they were clearly covered under entry 59 of the notification dated March 2, 1963. It was observed by the Board of Revenue that entry 59 was comprehensive enough to include Bhimsaini Kajal, Nagjyoti and Baljyoti. What we would like to point out in this connection is that the Board of Revenue did not hold that the three articles referred to above were cosmetics, although it definitely held that they were not medicines. Thus, what has been decided by the Board of Revenue is that the articles which were subject-matter of reference were covered by item?59 of the notification dated March 2, 1963 and not under item 65 of the said notification. To our mind, the question which has been framed by the Board of Revenue is not aptly worded and does not bring out clearly the real issue in dispute between the parties, which is whether the assessee is chargeable to tax in respect of the sale of the above mentioned three articles under item 59 or under item 65 of the notification dated March 2, 1963. We feel that the question has been framed by the Board of Revenue too narrowly and the question which has to be referred must conform to the question which arises out of the order of the Board of Revenue. We. therefore, think it proper to re-frame the question referred to us, before proceeding to answer the same, so as to bring out the real issue in controveray between the parties in this case. We, therefore, resettle the issue as under: - "whether Bhimsaini Kajal, Nagjyoti and Baljyoti manufactured and sold by the assessee are covered by item 65 or under item 59 of the notification dated March 2, 1963. " Learned counsel for the assessee strenuously contended before us that the three articles, which are subject-matter of reference in this case, are medicinal preparations and are prepared according to Ayurvedic formula. According to learned counsel these articles are cleansing againsts which are to be applied to the eyes for the prevention of diseases and in order to keep the eyes healthy and for improving the sight.
(3.) LEARNED counsel for the assessee also relied upon a certificate of In-charge Government Ayurvedic College Laboratory and a Test Certificate of Shri-ram Trust. He also relied upon the pamphlet supplied alongwith the three varieties of Kajal. The assessee has described in the pamphlets the effect of using the three varieties of Kajal manufactured by him which is mainly of keeping the eyes healthy, beautiful and attractive and also of keeping the eyes cool and clean. People have been advised to use the said varieties of Kajal daily, twice a day, in the night while going to sleep and in the morning. Thus, according to the assessee. who is the manufacturer of the three varieties of Kajal, they were things of daily use. It has also been mentioned in the pamphlets that the Kajal is not to be used as a curative for any particular disease, but it can be useful for improving the sight by removing dust particles and preventing infection in the eyes. The test certificates issued by the Shriram Trust, a department of Shri Ram Institute for Industrial Research, Delhi shows that upon analysis the sample of Bhimsani Kajal discloses the constituents specified in the certificate. The other certificate dated October 11, 1965 issued by the Incharge, Government Ayurvedic Dispensary College Laboratory, Jaipur, states that the varieties of Kajal manufactured and sold by the assessee were purely Ayurvedic produce. , and Bhimsaini Kajal is useful for every day cleansing of the eyes, although it has not been found to be of medicinal value in respect of any specified ailment. Another certificate which was relied upon by the learned counsel for the assessee, issued by the Principal, Government Ayurvedic College, Jaipur, dated August 17, 1976 merely states that considering the pamphlets and the composition of the three varieties of Kajal manufactured by the assessee, it would be proper to treat them as medicines. It may be observed that no reason has been assigned by the Principal of the Government Ayurvedic College in expressing the opinion that the aforesaid three varieties of Kajal should be treated as medicines nor he has stated that the Kajal in question had any specified medicinal or curative value in respect of any specified diseases. Thus, according to learned counsel, the three articles in question fell within item 13 of the notification dated March 2, 1963 and they are neither covered under item 59 nor under item 65 of the aforesaid notification. Learned counsel relied upon the decision of the Allahabad High Court dated March 28, 1979 in Sales Tax Reference No. 1134 of 1976 (Commissioner of Sales Tax U. P. vs. M/s. Murari Brothers, Chasiabad) and of the Madras High Court in the State of Madras vs. S. P. Vadivel Nadar and Sons (1), and of the Bombay High Court in the Central Provinces Manganese Ore Company Ltd. , Nagpur vs. The State of Maharashtra (2 ). Learned Additional Government Advocate, appearing for the assessing authority, however, contended that the three articles in question were toilet articles and fell within item 59 of the notification dated March 2, 1963 and they were neither medicines covered by item 13 nor they were covered by item 65 of the said notification. ;