State of Kerala Represented by Joint Commissioner (Law), Ernakulam v. Anitha Balan
2009-01-30
C.K.ABDUL REHIM, C.N.RAMACHANDRAN NAIR
body2009
DigiLaw.ai
Judgment :- Ramachandran Nair, J. This revision if filed by the State against the order of the Tribunal rejecting it's claim that hair dye is a cosmetic taxable at the rate of 20% under entry 127 of the first schedule to the KGST Act. Since notice could not be served on the respondent, this court directed the State to effect service through newspaper publication. Copy of the newspaper publication is produced in court towards proof of substituted service of notice. Inspite of publication in the newspaper, respondent has not appeared in court. Therefore, we heard learned Government Pleader and proceed to dispose of the case on merits. 2. There is no entry in the first schedule to the KGST Act specifically covering hair dye. However entry 127 covers perfumes and cosmetics not mentioned elsewhere in the schedule. For easy reference the said entry is extracted hereunder: TABLE 3. On going through the Tribunal's order we find that the Tribunal has followed the decision of the Andhra Pradesh High Court in Godrej Soaps Limited vs. State of Andhra Pradesh (1983) 53 STC 376) and allowed the claim of the respondent by holding that the item is not cosmetic. On going through the said judgment, we find that the court in that case was considering only whether 'hair dye' is a 'hair lotion". However learned Government Pleader pointed out that the entry in Kerala Act is different and entry 127 above referred covers all perfumes and cosmetics not specifically covered by any other entry in the schedule. We find that items specifically covered are Shampoo, Talcum powder, sandalwood oil etc., all of which are various types of perfumes and cosmetics. In fact, after specifying certain items, the entry further provides that other perfumeries and cosmetics not falling under any other entry in the first schedule are also covered by it namely entry 127. In other words, in addition to the specific items referred to therein, entry 127 is the residuary entry covering all items falling under the description of "perfumeries and cosmetics". Consequently the next aspect to be considered is whether hair dye is a perfume or cosmetic. The meaning of the word cosmetic contained in the dictionary is as follows:- "1. intended to adorn or beautify the body, especially the face. 2.
Consequently the next aspect to be considered is whether hair dye is a perfume or cosmetic. The meaning of the word cosmetic contained in the dictionary is as follows:- "1. intended to adorn or beautify the body, especially the face. 2. intended to improve only appearance, superficially improving or beneficial a cosmetic change of surgery or a prosthetic device imitating, restoring, or enhancing the normal appearance." 4. It is clear from the above meaning contained in the dictionary that cosmetics are items used to improve the appearance superficially and items restoring or enhancing normal appearance are known as cosmetic preparation. Hair dye generally used is for the purpose of restoration of original colour of the hair that is back when hair starts graying. There can be no doubt that the purpose of restoration of original colour through the application of dye is only to improve the appearance. We are therefore of the view that hair dye is nothing but a cosmetic and the Tribunal went wrong in holding that it is not covered by entry 127 of the first schedule of the KGST Act. We therefore, allow the Tax Revision case filed by the State by reversing the order of the Tribunal and restoring the assessment of hair dye as cosmetic taxable at 20% under entry 127 of the first schedule of the KGST Act.