Bombay High Court
Vicco Laboratories And Anr. vs The Municipal Commissioner And Anr. on 10 October, 1994
Equivalent citations: (1995)97BOMLR330
Author: A.P. Shah
Bench: A.P. Shah
JUDGMENT Bhattacharjee, J.
1. The only question that is involved in these appeals is as to whether the articles produced by the appellant company come within Entry 32(a) of Schedule H or Entry 24 of Schedule H-l of the Bombay Municipal Corporation Act. If they come within the former, octroi would obviously be payable but if they come within the latter, they may be exempted from payment of octroi.
2. Section 192(1) of the Bombay Municipal Corporation Act provides that a tax, called "octroi", shall be levied in respect of articles mentioned in Schedule H cm the entry of the said articles into Greater Bombay for consumption, use or sale therein, Section 192(6), inserted by the Maharashtra Act 12 of 1993, nevertheless provides that notwithstanding anything contained in Section 192, no Octroi shall be payable on the articles specified in Schedule H-l on the entry of the said articles into Greater Bombay for consumption, use or sale therein. The said two sub-sections, being Sub-section (1) and Sub-section (6) of Section 192, and the two Entries relevant for our purpose, being Entry No. 32(a) of Schedule H and Entry No. 24 of Schedule H-l, reproduced hereinbelow for the facility of discussion :
192(1) Except as hereinafter provided, a tax at rates not exceeding those respectively specified in Schedule H shall be levied in respect of the several articles mentioned in the said Schedule, or so many of them or such of them as the Corporation shall from year to year in accordance with Section 128 determine, on the entry of the said articles into Greater Bombay for consumption, use or sale therein. The said tax shall be called an "octroi". 192(6) notwithstanding anything contained in the section, no octroi shall be payable on the articles specified in Schedule H-l on the entry of the said articles into Greater Bombay for consumption, use or sale therein.
Entry 32(a) of Schedule H :
Hair oil, perfumed oils, perfumery of all kinds, scents, attars, scented material, essence sticks, aromatic chemicals, toilet requisites of all kinds, shaving cream, shaving sticks, tooth powder, tooth paste, pomade, combs, brushes, looking glasses, hairpins, breeches, garters and suspenders.
Entry 24 of Schedule H-1 Medicines excluding tooth powder or tooth paste, cosmetics, toilet requisites and soaps, whether used as medicine or otherwise, blood and herbal drugs.
3. In essence. Schedule H-1 was not that necessary because any article not coming within Schedule H was obviously not liable to payment of octroi. But, may be, to make assurance doubly sure, Schedule H read with Section 192(6) now categorically provides that any article coming within that Schedule H-l would nevertheless be exempted from payment of octroi duty even if those could otherwise be squeezed within any of the Entries in Schedule H.
4. The case of the appellants is that even though the articles in question may be or are used as tooth powder and tooth paste or cosmetic, they are in essence Ayurvedic medicinal products and are accordingly "Medicine" and as such are not taxable under Entry No. 32(a) of Schedule H read with Section 192(1); and now that En try No. 24 of Schedule H-l has made it clear that medicines are excluded from payment of octroi, these are evidently no longer taxable, even assuming arguendo that they could otherwise be taxed under Entry No. 32(a) 'of Schedule H as tooth paste, tooth powder or toilet requisites. Of the three articles in question, one is expressly branded on the carton as Vicco Vajradanti tooth paste, while the other two go under the labels of Vicco Vajradanti and Vicco Turmeric. But even though these two have not been labelled or branded as tooth powder or cosmetic, the appellants have not disputed that, even though medicinal products, these are nevertheless a paste for the teeth and a cream for the skin. As the copies of the advertisements, being Exhibit 6 series would unmistakably demonstrate, these have been advertised as tooth paste, tooth powder and skin cream. Prima facie, therefore, they would apparently come with Entry No. 32(a) of Schedule H which covers tooth paste, tooth powder as well as toilet requisites. But the argument advanced by Mr. Manohar, learned Counsel appearing for the appellant has almost echoed the vedantic philosophy that the apparent is not the real and Mr. Manohar has seriously urged that even if these articles are labelled and/of advertised or used as tooth paste or tooth powder and skin cream, in reality they are essentially Ayurvedic medicines or medicinal products and as such they do not come within the expressions "tooth paste" or "tooth powder" or "toilet requisites" as used in Entry No. 32(a) of Schedule H and are not taxable as such. And if they are in essence, as Mr. Manohar asserts, Ayurvedic medicines or medicinal products, they are now expressly excluded from payment of octroi duty under Entry 24 of Schedule H-1.
5. The expressions "tooth paste" and "tooth powder" or "toilet requisites" as used in Entry No. 32(a), quoted hereinabove, are ordinarily English words and, we thought, we should have no difficulty in understanding what they mean. True, very often we fail to understand the ordinary meaning of the ordinary words and make a mess of them by including into useless legal verbiage. We ought to remind ourselves, as we do here, of the classical observations, of Justice Vivian Bose in Seksaria Cotton Mills v. State of Bombay to the effect that :
...the more learned their advisers were in the law the more puzzled they would be as to what advice to give, for it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding.
Whether such confusion of thoughts are really due to our want of clarity of thought or due to legal learning, as observed by Justice Vivian Bose, need not detain us; but very often, we in the world of law, get ourselves inextricably enmeshed in such wrangles and that is why we required a five-Judge Bench of the Supreme Court to tell us that in Ramavtar Budhaiprasad v. Assistant Sales Tax Officer, Akola , that "betel leaves" are not "vegetables". Very recently, in another case before us, we have also reminded ourselves of what happened in a case before Chief Justice Chagla of this High Court in this very Court Room about four decades ago. The question that arose in the appeal before the Chief Justice was whether gold topped fountain pens were nevertheless gold and were within the mischief of the Customs Act as such gold. At the end of long and laborious arguments advanced by eminent counsel appearing for the parties, Chief Justice Chagla asked the Advocate-General to hand-over to him one such article seized by the Customs authorities. After a specimen was handed over, as requested, Chief Justice Chagla took the article lifted it in his hand and asked the Advocate-Genoral as to what was the object which the Chief Justice was holding in his hand. The Advocate-General had to reply that the article which the Chief Justice was holding was a fountain pen and thereupon Chief Justice Chagla said that the same concluded the matter and relieved him of deciding the question sought to be raised whether the article as gold or not and of other intricacies of the Customs Act. (Roses in December-M. C. Chagla 1990 pp. 158-159.
6. We have also looked at the above articles plainly, though meaningfully, and the manner in which these are advertised by the appellant and also the manner in which these are intended and expected to be used by the ordinary consumers and we are inclined to hold that the articles, howsoever produced, and even if they are medicinal products, are nevertheless tooth powder, tooth paste, skin cream and toilet requisites within the meaning of Entry 32(a) of Schedule H of the Bombay Municipal Corporation Act.
7. No citation can obviously be necessary for this too obvious a proposition that ordinarily the dominant purpose of or the main user to which the article is put to is decisive and determinative of its true character. If we are to accept the argument of Mr. Manohar that these articles must be excluded, even if ordinarily used as tooth paste, tooth powder, skin cream and toilet requisites within the meaning of Entry 32(a), because of their being medicinal products, we will have to clearly ignore the very advertisements issued by the appellant in respect of these articles and the dominant purpose for which these articles are intended, expected or meant to be used. Even accepting the contention of Mr. Manohar that these article are medicines or medicinal products, we cannot fail to notice that in Schedule H-l Entry 24, medicines which are exempted from payment of octroi would nevertheless be "excluding tooth powder or tooth paste, cosmetics, toilet requisites and soaps, whether used as medicine or otherwise".
8. We do not, as we cannot, for a moment suggest that any article which goes out of Schedule H-l automatically comes within Schedule H and becomes taxable as such; for in order to be taxable under Section 192 of the Bombay Municipal Corporation Act, the article must not only be one which is not specified in Schedule H-1, but must also be one which is clearly and affirmatively within any of the items specified in Schedule H. But if these items in question, even assuming to be medicines or medicinal products, go out of Entry 24 of Schedule H-l for their being "tooth powder or tooth, paste or cosmetics or toilet requisites" as specified in the exclusionary provisions of Entry 24, they would obviously come within the provisions of Entry 32(a) as being such "toilet requisites, tooth powder or tooth paste."
9. As has been pointed out in the five-Judge Bench decision of the Supreme Court in Ramavtar Budhaiprasad (supra), the names of articles which are shown as liable to be taxed given in a Statute, unless defined in the Statute itself, must be construed, not in a technical sense, but as understood in common parlance. If the words used to denote the articles are common or of every day use, they must be construed in a popular sense, i. e. in that sense which people commonly using these articles would attribute to them.
10. Reliance was placed by a later two Judge Bench of the Supreme Court in M/s. Sarin Chemical Laboratory v. Commissioner of Sales Tax U. P. on the aforesaid decision in Ramavtar Budhaiprasad (supra). In that case the question for consideration was whether "tooth powder" is a "toilet, requisite" or a "cosmetic", and the two-Judge Bench reiterated that these words must be construed in a sense as understood in common parlance. It was pointed out that according to the Webster's International Dictionary, the expression "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" and according to the same Dictionary the meaning of the expression "toilet" is "an act or process of dressing, especially formerly of dressing hair, and now usually cleansing and grooming of one's persons". The word "toiletry" has been explained in the said Dictionary as meaning "an article or preparation used in making one's toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc. It was accordingly held that in common - parlance "tooth powder" considered as toilet and that such meaning accords with the dictionary meaning as well. The Supreme Court approved of the decision of this High Court in Commissioner of Sales Tax v. Vicco Laboratories (1968) 22 S.T.C. 169 wherein it was also held that "tooth powder" is a toilet.
11. In yet a later three-Judge Bench decision of the Supreme Court in State of Gujarat v. Prakash Trading Co., AIR 1913 SC 960. reliance was placed of the decision of the Supreme Court in Sarin Chemical Laboratory (supra). The question which fell for consideration before the three Judge Bench was whether "shampoo, tooth paste and tooth brush" are toilet articles within the meaning of Bombay Sales Tax Act, as amended by the Gujarat Act 25 of 1962. The three-Judge Bench pointed out that it was concerned with the concept of "toilet articles" as understood in common parlance, there being no definition of that expression in the concerned statute. The three-Judge Bench also approved of the decision of this High Court in Vicco Laboratories (supra) where this Court has held that "Vicco Vajradanti" in the form of powder is used for cleansing teeth and was, therefore, tooth powder and, as such, a toilet article.
12. As a result of these decisions of the Supreme Court and in particular of the approval of the view of this High Court in Vicco Laboratories (supra) the position appears to be that any dental powder or paste used for cleansing of teeth, is a toilet article and the articles would not cease to be "tooth powder" and "tooth paste" and as such "toilet requisites", even though they are medicinal products and they would, therefore, be clearly taxable under Entry 32(a) of Schedule H. It is true that now Entry 24 of Schedule H-l excludes "Medicine" from the liability of octroi tax; but since "tooth powder" or "tooth paste" or, toilet requisites" are expressly excluded from the ambit of Entry 24 whether they are used as medicine or otherwise, these articles would obviously be liable to be taxed under Entry 32(a) of Schedule H.
13. As to the other article, being "Vicco Turmeric", the same, as already noted, is advertised as "skin cream" and admittedly used as such. We have already noted that the word "cosmetic" as explained in the Webster's International Dictionary, and noted with approval by the Supreme Court in Sarin Chemical Laboratory (supra) a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth" and "toiletry" has been explained as meaning "an article or preparation used in making one's toilet, such as soap, lotion, cosmetic, tooth paste shaving cream etc." and, therefore, the article "Vicco Turmeric" would obviously be a "toilet article" or "cosmetic". The definition of the word "cosmetic", as in Section 3(aaa) of the Drugs and Cosmetics Act, 1940, is "any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifing, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic." This appears to be what was held by the Supreme Court in Sarin Chemical Laboratory (supra) and in Prakash Trading Co. (supra), with some verbal changes and we would accordingly have to hold that "Vicco Turmeric" is very much a "toilet requisite" as specified in Entry 32(a) of Schedule H and as "cosmetics" and "toilet requisites" have been expressly excluded from the ambit of "medicines" as specified in Entry 24 of Schedule H-1, the article "Vicco Turmeric" is obviously liable to be taxed for octroi.
14. Strong reliance was placed by Mr. Manohar on the five-Judge Bench decision of the Supreme Court in Adhyaksh Mathur Babu's Sakti Oushadhalaya Dacca (P) Ltd. v. Union of India, and a later three-Judge Bench decision of the Supreme Court in Ayurueda Pharmacy v. State of T.N. , in support of his contention that since these articles are Ayurvedic medicinal preparations, they cannot be taxed as "tooth poivder", "tooth paste", "cosmetic" or "toilet requisites", even assuming that they are used or are capable of being used as such. The ratio of the aforesaid two decisions of the Supreme Court appears to be that if the articles in question are in effect and substance Ayurvedic medicines or medicinal preparations they cannot cease to be so and be taxed otherwise solely on the ground that they contain high percentage of alcohol and are capable of being used as alcoholic beverages. We are afraid that the ratio of these two decisions would rather go against the contention of Mr. Manohar because the logical conclusion therefrom would obviously be that if in substance and in effect an article is used and is also advertised as "tooth paste", "tooth powder" or "cosmetic" or "toilet requisite", it would not cease to be so even though they contain Ayurvedic herbal products, in whole or in part. To borrow from Ayurveda Pharmacy (supra) "so long as they continued to be identified" as "tooth paste" or "tooth powder" or "toilet requisites" they must be taxed as such even though they are manufactured wholly or in part of Ayurvedic herbs.
15. The appeals accordingly fail and are dismissed, but with no order as to costs.
16. After the judgment is delivered, Mr. Manohar appearing for the Appellants has prayed that the interim order dated 7th January, 1994 in Civil Application No. 6223 of 1992 may be continued for some more time to enable the Appellants to take further steps in the matter. We direct that the said interim order be continued in operation for six weeks from this date.