B SHAH AND CO SURAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) WHETHER "nycil Medicated Powder" is a "toilet article" within the meaning of entry 21a of Schedule E or is a "medicine" within the meaning of entry 13 of Schedule C or is covered by the residuary entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 (hereinafter referred to as the Act) is the question which arises for our determination in this reference. The facts giving rise to the reference are as under : The assessee-firm is a dealer carrying on business in drugs and medicines and is registered as a "dealer" under the Act. The assessee-firm, is also functioning as a distributor of a product known as "nycil Medicated Powder" (hereinafter referred to as "the Nycil powder") manufactured by the British Drug House (India) Pvt. Ltd. , Bombay (hereinafter referred to as "british Drug House" ). The firm made an application under section 52 of the Act to the Commissioner of Sales Tax for determination of the question as to the rate of tax payable on the sales of Nycil powder. In the application it was stated on behalf of the assessee-firm, that Nycil powder is used as a medicated powder for many external skin and other diseases and was, therefore, not a toilet article. Along with the application, the assessee-firm produced a sample bill dated 23rd April, 1968, as well as a copy of the trade pamphlet issued by the manufacturer and a sample bottle of the article in question. Before the Deputy Commissioner of Sales Tax, who heard the application, it was contended on behalf of the assessee-firm that Nycil powder is neither a toilet article nor a cosmetic within the meaning of entry 21a of Schedule E but it was a medicine within the meaning of entry 13 of Schedule C. In the alternative, it was contended on behalf of the assessee that Nycil powder would fall within the ambit of the residuary entry 22 of Schedule E to the Act. The Deputy Commissioner of Sales Tax, by his judgment and order dated 8th April, 1969, held that Nycil powder was a toilet article within the meaning of entry 21a of Schedule E and was liable to tax at the rate specified against the said entry in Schedule E. The Deputy Commissioner of Sales Tax in his judgment observed as follows : " In the instant case it is evident that the Nycil powder is designed to keep the skin clean so as to offer protection against prickly heat and infection, besides giving comfort and freshness. Therefore, even if Nycil is a medicated powder, it nevertheless performs the function of cleaning the skin and soothing it. In view of these basic properties, Nycil powder can certainly be regarded as a toilet article within the meaning of entry 21a of Schedule E. The mere fact that Nycil is a medicated powder and that it required drugs licence for its manufacture is not sufficient to hold that it is a medicine within the meaning of entry 13 (1) of Schedule C and the popular meaning of that item. If the article in question has some hygienic effect, it can be said to be incidental inasmuch as it basically remains a toilet article as it can be seen from its uses and properties. "

(2.) IT is on the strength of these findings that the Deputy Commissioner of Sales Tax took the view that Nycil powder was a toilet article.

(3.) THE answer to the question referred to us will turn upon the true and proper interpretation of entry 21a of Schedule E and entry 13 of Schedule C to the Act because if Nycil powder is not covered by either of the said two entries, it must, in the absence of any other appropriate entry - and admittedly there is no other appropriate entry which could cover it - fall within the ambit of the residuary entry 22 of Schedule E. We shall, therefore, consider the question referred to us firstly by reference to entry 21a of Schedule E and consider whether Nycil powder is a toilet article within the meaning of the said entry. If we come to the conclusion that Nycil powder is not a toilet article, we shall next consider whether it is "medicine" within the meaning of entry 13 of Schedule C.