Desai, J.
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.'
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.
2. Being dissatisfied with the determination aforesaid by the Deputy Commissioner of Sales Tax, the assessee-firm carried the matter in appeal before the Gujarat Sales Tax Tribunal (hereinafter referred to as 'the Tribunal'). On behalf of the assessee, a copy of the decision of the Maharashtra Sales Tax Tribunal in Messrs British Drug House (India) Pvt. Ltd. v. The State of Maharashtra (Appeal No. 353 of 1963 decided on July 9, 1965) was produced and relied upon before the Tribunal. The decision contained information regarding 'Nycil' which is the trade name under which the British Drug House produces and markets the substance known as 'chlorphenesin'. A copy of the order passed by the Government of India, Ministry of Finance, holding that Nycil powder was liable to be assessed to duty as 'P. and P. Medicines' under item No. 14E of the Central Excise Tariff was also produced and relied upon before the Tribunal on behalf of the assessee. The Tribunal, drawing upon the information available from the judgment of the Maharashtra Sales Tax Tribunal referred to above, extensively set out in the judgment particulars regarding the nature and property of Nycil powder and its composition and also made a reference to the recommended use of the article in question as contained on the sample bottle of Nycil powder. The Tribunal, in the light of the ratio of the decision of this court in Messrs Prakash Trading Co. v. The State of Gujarat ([1969] 24 S.T.C. 106), then proceeded to consider the question whether Nycil powder was a toilet article, i.e., an article which could be used for the purpose of grooming a person by beautifying his appearance. The Tribunal observed that Nycil powder 'can be used and is presumably used for the purpose of grooming a person by beautifying his appearance'. The Tribunal took the view that Nycil powder was, therefore, broadly speaking a toilet article though it contained certain ingredients which have preventive and curative effect on the skin. The Tribunal further held that merely because the powder contained chlorphenesin in the proportion of 1 per cent. of the total ingredients, which substance had a preventive and curative effect on the skin, as also certain other antiseptic substances in the proportion of 32 per cent. of the total ingredients, it would not mean that Nycil powder is not a toilet article. In this view of the matter, the Tribunal held that Nycil powder is a toilet article within the meaning of entry 21A of Schedule E. As regards the contention of the assessee-firm that Nycil powder was a medicine within the meaning of entry 13 of Schedule C, the Tribunal observed that the medicinal substances, viz., chlorphenesin, zinc oxide and boric acid formed only 33 per cent. of the total contents of Nycil powder and that the rest of the material was starch and talc. The Tribunal, therefore, held that the fact that Nycil powder contained certain ingredients which could be styled as medicines and which had the effect of protecting and 'to a very minor extent' acting as a curative and preventive agent, would not be sufficient to render the article 'medicine' within the meaning of entry 13 of Schedule C. In view of the aforesaid findings the Tribunal, disagreeing with the decision of the Maharashtra Sales Tax Tribunal, dismissed the appeal filed by the assessee-firm and confirmed the determination of the Deputy Commissioner of Sales Tax to the effect that Nycil powder was a toilet article within the meaning of entry 21A of Schedule E.
3. The assessee-firm, being aggrieved by the decision of the Tribunal, made an application to the Tribunal requiring it to refer to this court the question of law arising out of its aforesaid order and the Tribunal has accordingly referred to this court the following question of law for its opinion :
'Whether on the facts and in the circumstances of the case, 'Nycil Medicated Powder' is a toilet article within the meaning of entry 21A of Schedule E or is a medicine covered by entry 13 of Schedule C, or is covered by the residuary entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 ?'
4. 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.
5. Before taking up the question of interpretation of these two entries, it would be appropriate to set out at this stage the relevant portions of the said two entries.
SCHEDULE C ------------------------------------------------------------------------Sr. No. Description of goods. Rate of Rate ofsales tax. purchase tax.1 2 3 4------------------------------------------------------------------------ 13. (1) Drugs and medicines Three naye paise Three naye paise(other than those in the rupee. in the rupee.specified in entry 69in this Schedule). (2) Vitaminised infant Three naye paise Three naye paisemilk food sold in in the rupee. in the rupee.sealed containers. ------------------------------------------------------------------------ SCHEDULE E ------------------------------------------------------------------------------------------------------------------------------------------------Sr. No. Description of goods. Rate of Rate of generalsales tax. sales tax.1 2 3 4----------------------------------------------------------------------- 21A Toilet articles including Ten naye paise Three naye paisehair cream and hair tonic, in the rupee. in the rupee.and perfumes, depilatoriesand cosmetics (except soapas specified in entry 28in Schedule C [and haircombs as specifiedin entry 3-D of thisSchedule] and hair-oilas specified in entry 7of this Schedule). ------------------------------------------------------------------------
Entry 21A of Schedule E has come up twice for interpretation before this court and it may be useful at this stage to refer to the ratio of the said two decisions. We may observe that there has since been no change in the language of the said entry and we are concerned in this case also with the same entry as it stood when it was interpreted in the said two decisions. In the State of Gujarat v. Hindustan Traders, Rajkot ([1969] 24 S.T.C. 103), a Division Bench of this Court consisting of Divan and J. B. Mehta, JJ., was concerned with the question whether a 'shaving brush' was a toilet article within the meaning of the said entry. At page 104 of the report, we find that the Division Bench observed as follows :
'The expression 'toilet article' would, therefore, cover articles of or for the toilet. The act or process of toilet would be the process of dressing or grooming one's person, including dressing of one's hair, and, therefore, toilet articles would include all the articles used in dressing or grooming, not only one's hair but one's person. In the present entry, the Legislature has in terms included hair cream, hair tonic, perfumes, depilatories and cosmetics which all have the effect of making the appearance more attractive or have a beautifying effect. In fact, all these articles are capable of direct use for the purpose of toilet as they directly dress or groom the person.'
6. Again at page 105, we find that the Division Bench observed as follows :
'The entire entry when construed in its proper context can be given full effect on the basis that toilet articles are those articles which are directly used for toilet effect and the Tribunal was justified in not giving a wider meaning than what the Legislature has in terms intended.'
7. The ratio of the aforesaid decision is that toilet articles within the meaning of the said entry are those articles of or for toilet which are directly used for toilet effect and would include all articles directly used in dressing or grooming one's person. It may be noted that this court in the said decision gave a narrow meaning to the expression 'toilet articles' by confining it only to those articles which produced direct toilet effect, that is, to articles which could be directly used in dressing or grooming a person so as to beautify his appearance. According to the said decision, the expression 'toilet article' did not include within its ambit all those articles which, when collectively used, make one's toilet and since a shaving brush could not be independently used for making one's toilet, it was held that the said article was not a toilet article within the meaning of the said entry.
8. In Prakash Trading Co. v. State of Gujarat ([1969] 24 S.T.C. 106), the same Division Bench was concerned with the question whether Colgate tooth-paste and Colgate tooth-brush as well as Palmolive shampoo were toilet articles within the meaning of the said entry. The Division Bench again interpreted the expression 'toilet articles' in the context and collocation of the words found in the said entry and, applying the principle of noscitur a sociis, held that having regard to the fact that the expression 'toilet articles' was used in close association with the word 'cosmetics' and further that certain other articles which were of direct use in the process of grooming a man were specifically included or excluded from the ambit of the said entry 'the words 'toilet articles' would have a restricted meaning as those articles which are of direct use in the process of toilet, that is, the process of grooming a person by beautifying his appearance. The process of toilet would not amount to mere cleansing of a person, for giving any wider meaning.' We can do no better than to set out the ratio of that decision in the words of the Division Bench itself as it is found at page 119 of the report :
'In that view of the matter our interpretation of the relevant entry 21A is that 'toilet articles' under that entry would cover only those articles which are of direct use in the process of grooming a person by beautifying his appearance and that expression is not used in a wider sense of articles which collectively go in making one's toilet or which are used for merely cleansing ones person.'
9. We are in respectful agreement with the test laid down in the aforesaid two decisions of this court for determining whether a given article is a toilet article or not and we shall, therefore, approach the present case having regard to the test laid down in the said decisions. We shall, therefore, have to determine whether Nycil powder is an article which can be directly used in the process of grooming a person by beautifying his appearance. It would at this stage be necessary to refer to the nature, composition and property of Nycil powder.
10. The Tribunal, by drawing extensively upon the, judgment of the Maharashtra Sales Tax Tribunal as well as upon the instructions printed on the container of Nycil powder made certain observations with regard to the character and composition of Nycil powder and its special attributes and, briefly speaking, the observations reveal that Nycil powder has the following features and attributes :
(1) Chlorphenesin, being a medical substance was introduced as a result of original work in the British Drug House Research Laboratories. 'Nycil' is the trade name under which the British Drug House product of chlorphenesin is manufactured and marketed.
(2) Chlorphenesin is a potent antifungal, antibacterial and trichomonicidal substance of low toxicity. Organisms against which it is effective include the common dermatophytes causing tinea pedis (Athlete's foot) and other dermatomycoses, epidermophyton floccosum and the various trichophyton species such bacteria as streptococci, staphyloccocci, coliform organisms and clostridii. Nycil is effective in eliminating pruritus ani and pruritus vulvae. Pruritus ani and pruritus vulvae are frequently of bacterial or fungal origins, or the lesions may become infected with bacterial or fungi, and Nycil is effective in eliminating such organisms.
(3) Nycil in the form of powder or ointment is recommended for the treatment of prickly heat and dhobie itch and active skin protection during ringworms and other fungicidal infections. Nycil powder is particularly suitable for the initial treatment of acute mycotic infection as it absorbs in addition to exercising its fungicidal action.
(4) The ingredients of Nycil powder are as under :
(i) Chlorphenesin B.P. 1% (ii) Zinc Oxide I.P. 16% (iii) Boric Acid I.P. 16% (iv) Starch I.P. 51% (v) Talc to 100% The above composition of Nycil powder shows that it contains medicinal articles to the extent of 33 per cent.
(5) On the sample bottle of Nycil powder, produced before the lower authorities, on its one side the following was found printed : 'Nycil for Prickly Heat and Active Skin Protection'. On the other side, the following was found to have been printed : 'Nycil contains chlorphenesin the antibacterial and antifungal agent. It actively prevents prickly heat and protects the skin from sores, dhobie itch, and athlete's foot.' The formula of the Nycil powder is also printed on the container. The Tribunal has made the following pertinent observations as regards the container of the Nycil powder :
'It will be noticed that the article is not called medicated or talcum powder or powder. No name is given except 'Nycil' which as stated above is only a trade name of the different products manufactured by British Drug House. The article manufactured is packed in a long and round container of plastic. It has a separate cover of plastic. The contents are also covered by a small plastic cover which contains spaces for making holes. The powder is white in colour and perfumed and in general appearance is not different from the white talcum or such other powders.' (6) The medicinal substances used as ingredients in the manufacture of Nycil powder are Indian Pharmaceutical or British Pharmaceutical articles for the use of which licence is necessary. Licence is also necessary under the Indian Drugs Control Act for manufacturing, stocking or selling Nycil powder and the licence has accordingly been issued. The Government of India, Ministry of Finance, has held and directed that Nycil powder should be assessed to duty as 'P. and P. Medicines' under item No. 14E of the Central Excise Tariff.
11. The question which we have to consider is whether having regard to the ingredients of Nycil powder, its nature and property and the advertised use for which it is recommended, the article in question can be said to be an article which can be directly used for the purpose of grooming a person by beautifying his appearance. Now, there is no doubt that Nycil powder can be directly used and therefore that aspect of the matter need not detain us longer. The real question is whether it could be said that Nycil powder is an article which is meant for being used by itself for the purpose of dressing or grooming a person so as to beautify his appearance. We have set out above the special attributes of Nycil powder as well as the character and composition of Nycil powder. It is clear from the composition of Nycil powder that it is primarily and essentially an article recommended for use to cure a person of certain skin ailments and that it is made of medicinal articles with starch and talc as its basis. The use for which it is recommended by the manufacturers is not for the purpose of grooming a person by beautifying his appearance but for the purpose of relieving a person from certain skin ailments and it is not even styled or advertised as a toilet powder. Having regard to these special attributes and property of Nycil powder as well as to the advertised use for which it is intended, it would be difficult to hold that Nycil powder would or could ordinarily be used for the purpose of grooming a person by beautifying his appearance.
12. The Tribunal in para. 9 of its judgment has proceeded on the assumption that the powder 'can be used and is presumably used for the purpose of grooming a person by beautifying his appearance.' Mr. B. R. Shah, appearing on behalf of the revenue, placed a strong reliance on these observations of the Tribunal and contended that they amount to a finding that Nycil powder is in fact used as a toilet powder. We are unable to read into these observations a finding of the Tribunal to the effect canvassed for on behalf of the revenue. We find that the Tribunal has merely proceeded on an assumption that Nycil powder was capable of being used and was presumably used as a toilet powder and its observations based on such assumption do not amount to a finding of fact based on appreciation of evidence. True it is that the entire reasoning and final decision of the Tribunal that Nycil powder is a toilet article is founded on this assumption but that cannot have the effect of converting an observation based on conjectures into a finding of fact. We further find that the Tribunal has been overwhelmed in its approach to this question by the fact that chlorphenesin, which has a preventive as well as a curative effect on skin, constitutes only one per cent. of the ingredients of Nycil powder and further that only 32 per cent. of the other constituents are comprised of antiseptic medicinal articles. In our opinion, the approach of the Tribunal on this question is not correct. It is the use for which it is recommended and the effect which it produces or is intended to produce by its use that is more material in judging whether it is a toilet article. If the real use for which the article in question is recommended or advertised or found suitable is for medicinal purposes and not for toilet purposes, it would matter little even if its components are not entirely medicinal but also those which go into the making of a toilet article. The essential and true character of such an article as a remedial agent for diseases would not be thereby altered and the article in question must, having regard to its character and property, be held not to fall within the ambit of the expression 'toilet articles' as contained in entry 21A of Schedule E. We are, therefore, of the opinion that Nycil powder is not a toilet article within the meaning of the said entry.
13. Mr. B. R. Shah, the learned Assistant Government Pleader appearing on behalf of the revenue, relied upon the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax v. Sadhna Aushadhalaya ([1963] 14 S.T.C. 813), and contended that merely because Nycil powder was prepared out of certain medicinal articles for the purposes of giving relief in certain skin diseases, it would not cease to be a toilet article. We are unable to see how the decision relied upon by Mr. Shah supports his contention. It will in this context have to be borne in mind that we have already held that the article with which we are concerned cannot be said to be a toilet article because it is not found to have been used or intended to be used for grooming a person by beautifying his appearance. The Madhya Pradesh High Court was in that case called upon to consider the question whether a particular variety of hair-oil was a toilet article. The court held that the object of all hair-oils is to tidy the hair, to promote luxuriant growth of hair and to prevent dandruff and falling hair and that the appearance of the person using it is undoubtedly improved. In view of this finding, the court there held that hair-oil was a toilet article. The court, however, further observed that, that being so, there can be no justification for treating it as a medicinal preparation merely because the assessee manufactured the oil following a formula given in an Ayurvedic treatise. In that case, as pointed out above, the court had independently first reached the conclusion that the article in question had the effect of grooming a person and beautifying his appearance because it had the quality of acting as a hair tonic, preventing dandruff, falling hair and baldness. The court, therefore, rightly observed with respect that merely on account of the fact that it was made according to Ayurvedic formula, the article in question did not cease to be article meant for beautifying the appearance. In the present case, on the view that we are taking, it is difficult to hold that Nycil powder can be used for the purposes of grooming a person by beautifying his appearance. Its essential property and quality and recommended use is not as a toilet article but as an article for preventing or curing certain skin diseases and as such the decision of the Madhya Pradesh High Court can be of no avail to the revenue.
14. The next question that arises for our consideration is whether Nycil powder is medicine within the meaning of entry 13 of Schedule C. The answer to the question will depend upon the true meaning of the word 'medicine' which term has not been defined in the Act. According to Webster's New Twentieth Century Dictionary, the word 'medicine' has five meanings but the appropriate and relevant in the context of the facts and circumstances of this case, is 'any drug or other substance used in treating disease, healing or relieving pain, a drug or other substance as a poison, love potion etc. used for other purposes'. In the Shorter Oxford English Dictionary also different meanings are ascribed to the word 'medicine' and the one which is appropriate for the purposes of this case according to us is given as 'a medicament, esp. one taken internally; also, medicaments generally'. In Corpus Juris Secundum, Volume 57, at page 1042, there appears the following instructive passage on the meaning of the word 'medicine' :
'Medicine. A technical and generic term, derived from 'medeor'. it has frequently been defined by eminent lexicographers of medical words and terms, and is susceptible of two distinct meanings.
In one sense the word signifies a science or profession, and this meaning is treated in the C.J.S. title Physicians and Surgeons .......
In its other distinctive sense, the word signifies a drug, indicating nothing more than a remedial agent that has the property of curing or mitigating diseases, or is used for that purpose, and in its ordinary sense, as applied to human ailments, it means something which is administered, either internally or externally, in the treatment of disease or the relief of sickness. In this sense the word 'medicine' is variously defined as a remedial agent; a remedy; a physic; a medicament; any substance or preparation used in treating disease; articles intended for use in the diagnosis, cure, medication, treatment, or prevention of disease in man or other animals; a substance supposed to possess curative or remedial properties; a combination of drugs in largely varying proportions.'
It is thus clear that the word 'medicine' is susceptible of two distinct meanings and that in its ordinary sense as applied to human ailments, it means something which is administered either internally or externally in the treatment of disease or the relief of sickness. It is now well settled that the names of articles, sales as well as purchases of which are liable to be taxed, given in a statute, unless defined in the statute, must be construed not in a technical sense but as understood in common parlance : vide Ramavatar Budhaiprasad v. Assistant Sales Tax Officer ([1961] 12 S.T.C. 286 (S.C.)). The word 'medicine' appearing in entry 13, Schedule C, will therefore have to be interpreted not in a technical sense but as understood in common parlance. In its popular sense, 'medicine' is a remedial agent, a substance which may be sold in various forms such as liquid, tablets, capsules or powder, which is administered in the treatment of disease and which has the property of curing or remedying disease. This meaning also accords with the dictionary meaning to which we have just referred above. If this is the true meaning of 'medicine', in popular parlance, many articles which may not be medicine technically or strictly so-called, would be covered by the wide ambit of the word 'medicine' and we see no reason why Nycil powder, with its special qualities and attributes, its character and composition and its recommended or intended use as advertised by the manufacturers would not be covered within the meaning of the word 'medicine' as understood in popular parlance. True, as pointed out by the Tribunal, chlorphenesin is contained in Nycil powder to the extent of only one per cent. and other antiseptic medicinal agents are comprised to the extent of 32 per cent. and the rest of the material which goes into the making of the Nycil powder is composed of starch and talc. But it cannot be gainsaid having regard to the overall composition and property of Nycil powder and its recommended use that it is a medicament or a remedial agent used and recommended for being used in treating ringworm, dhobie itch, athlete's foot and other skin ailments. We are unable to agree with the Tribunal that merely because only 33 per cent. of the ingredients of Nycil powder are composed of medicinal preparations, it could not be said to be a medicine. If Nycil powder, by its very nature and composition, has the property of curing or preventing skin and other ailments or acting as a remedial agent in skin diseases and is recommended by its manufacturers for the said purpose and is advertised for use not as a toilet article but as an article containing medicinal properties, effective in giving relief in skin diseases, it would matter little even if only 33 per cent. of its components or ingredients are medicinal articles. In our opinion, the Tribunal has not applied the correct test which it ought to have applied in answering the question which arose for its determination and that having regard to the real use for which the article is recommended by its manufacturers and its property and attributes, Nycil powder would be medicine properly so-called. In that view of the matter, we are of the opinion that Nycil powder is 'medicine' within the meaning of entry 13 of Schedule C. We are fortified in our conclusion by the fact that even for the purposes of administration of Indian Drugs Control Act, Nycil powder is treated as a drug, and a licence is required to be taken for manufacturing, stocking and selling Nycil powder and further that for the purposes of Central Excise Act also the appropriate authorities have treated Nycil powder as 'medicine' and assessed it to duty accordingly.
15. In view of the aforesaid conclusion, the question whether Nycil powder falls within the residuary entry, does not at all arise for our consideration.
16. To the question referred to us for our opinion, our answer, therefore, is that Nycil medicated powder is 'medicine' covered by entry 13 of Schedule C to the Act.
17. The opponent-Commissioner of Sales Tax will pay the costs of the reference to the assessee-firm and bear his own.
18. Reference answered accordingly.