JUDGMENT - ORAL ORDER:---Petitioners are the manufacturers of products viz. Vicco Vajradanti Paste Powder, and Vicco Turmeric under Ayurvedic Drugs licence as required under the Drugs and Cosmetics Act, 1940. They have approached this Court by invoking the writ jurisdiction as the respondent-State amended Entry C-II-37 with effect from 29th June 1996, which Entry, it being so amended, reads as under: -------------------------------------------------------------------------------------------------- Per Sch. Medicines Sch. Toilet Sch. Cosmetics Exe IOD Ent. Ent. Article Ent. MPT- ION -------------------------------------------------------------------------------------------------- C-II Drugs C-II Tooth C-II Cosmetics -37 (including -32 paste, -34 depilatories Ayurvedic, 01.10 tooth 01.10 toilet Siddha, Unani 96 powder 96 to articles and spirituous to- whether dat and preparations medical date medicated whether drugs and or not and medicated or other homeopathic drugs) tooth wise including hair being for mulation or brushes. creams, hair tonics, preparation confirming hair oils, shampoo in to the following descrip- any form excluding tion namely: Any medicinal those specified formulation or preparation elsewhere. ready for use internally or externally for diagnosis, treatment, mitigation or prevention of any diseases or disorder in human beings, animals and birds which is manufactured, imported into India, stocked, distributed or sold under licence granted under the drugs and Cosme- tics Act, 1940, but excluding Mosquito repellants in any form. By Notification under section 41, Entry, A-55(a) rate of tax reduce to 6% on sales or purchases by RD of drugs covered by Entry 37, w.e.f. 1-10-96 to 31-12-99, whole of surcharge turnover tax exempted w.e.f. 1-1-2000. -------------------------------------------------------------------------------------------------- 2. Subsequently, the said Entry came to be further amended with effect from 06-02-1999 which reads as under : Per Sch. Medicines Sch. Toilet Sch. Cosmetics Exe IOD Ent. Ent. Article Ent. MPT ION C-II Drugs do do do -37 (including Ayurvedic, Siddha, Unani spirituous medical drugs and homeopathic drugs) being for- mulation or preparation confirming to the following description namely: Any medicinal formulation or preparation ready for use internally or externally on human being, animals and birds for diagnosis, treat- ment, mitigation or prevention of any diseases or disorders which is manufactured, imported into India, stocked, distributed or sold under the licence granted under the Drugs Cosmetics Act, 1940, but not including: (1) goods covered, described or specified in any other entry in this schedule, (2) Medicated goods. (3) Products capable of being used as tooth pastes, tooth powder, cosmetic, toilet article, soap hair oil. (4) Mosquito repellants in any form. 3. (3) Products capable of being used as tooth pastes, tooth powder, cosmetic, toilet article, soap hair oil. (4) Mosquito repellants in any form. 3. The challenge of the petitioner is to the subsequent amendment of the Entry so as to exclude 3 products capable of being used as tooth paste, tooth powder, cosmetics, toilet articles, soap and hair oil as this would attract a higher sales tax of 13% and 20%, as otherwise, the petitioners were liable to pay sales tax initially at the rate of 6%, which was subsequently enhanced to 8% and thereafter the enhancement was excluded by exemption. 4. According to the petitioner, as they are manufacturing these products under the licence under Drugs and Cosmetics Act and their products are medicines falling under Entry 37 of Schedule C-II of the Bombay Sales Tax Act, such exclusion is ultra vires and deserves to be struck down. 5. On the other hand, it is the contention of the respondent-State that these products of the petitioner are liable for sales tax under Entries 32 34 of Schedules C-II, though they are manufactured under the licence obtained under the Drugs Cosmetics Act. Entry C-II-32 covers tooth paste, tooth powder, whether medicated or not and tooth brushes, whereas Entry C-II-34 covers Cosmetics depilatories, toilet articles and preparations whether medicated or otherwise including hair cream, hair tonics, hair oils, shampoo in any form excluding those specified elsewhere. 6. We have heard the learned Counsel for the parties and have taken into consideration the various authorities cited by them at the Bar. In our opinion, the exclusion of products capable of being used as tooth paste, tooth powder, cosmetic, toilet article, soap hair oil from Entry C-II-37 is on a rational basis and cannot be held to be ultra vires for the simple reason that these products are manufactured by the petitioners for the said purpose, though, they may be medicated. 7. On earlier occasion, this Court had examined the issue while dealing with the liability of the petitioner to pay octroi duty to Bombay Municipal Corporation. (Vicco Laboratories v. Municipal Commissioner)1, 1995(1) Mh.L.J. 329 . Almost all the contentions raised by Shri V.R. Manohar, the learned Senior Counsel before us in the matter were considered and this Court held "Vicco Vajradanti" tooth paste, powder and Vicco Turmeric "cream" are 'toilet requisites' and 'cosmetics' and liable to be taxed for octroi. 8. (Vicco Laboratories v. Municipal Commissioner)1, 1995(1) Mh.L.J. 329 . Almost all the contentions raised by Shri V.R. Manohar, the learned Senior Counsel before us in the matter were considered and this Court held "Vicco Vajradanti" tooth paste, powder and Vicco Turmeric "cream" are 'toilet requisites' and 'cosmetics' and liable to be taxed for octroi. 8. We do not find any legal impediment in the respondent excluding the products such as that of the petitioner from Schedule C-II Item No. 37 and classify it in Schedule C-II Item Nos. 32 34 for the purpose if assessing sales tax. We further do not find any conflict in the decision to alter the entries for the reason that though the petitioner is manufacturing the said products under licence obtained from the authorities (Drugs Cosmetics Act, 1940) as it contains certain ingredients having medicinal value in Ayurved but in common parlance, these products are toilet and cosmetic preparations for daily use and cannot be described as Medicinal Preparations (See : unreported common decision by Their Lordships of the Apex Court in the case of (Shree Baidyanath Ayurved Bhawan Ltd. and M/s. Dabur Pvt. Ltd. v. Union of India others)2, Civil Appeal No. 4658 of 1985; 4559-60 of 1985; S.L.P. (Civil) No. 5520 of 1986 with W.P. (Civil) No. 803 of 1986 with C.A. No. 2199 of 1991 of March 30, 1995. 9. We, therefore, do not find any merit in the petition. The same is dismissed. No order as to costs. Petition dismissed. -----