1986 (12) TMI 354 - HC - VAT and Sales Tax

Pre-1976 Tax on Toothpaste & Toothbrushes Deemed Unlawful

The court ruled that 'tooth-paste' and 'tooth-brushes' were not encompassed under Entry No. 36 of the Andhra Pradesh General Sales Tax Act before the 1976 ... - Issues Involved:1. Interpretation of Entry No. 36, Schedule I of the Andhra Pradesh General Sales Tax Act, 1957.2. Whether 'tooth-paste' and 'tooth-brushes' fall under the category of 'cosmetics and toilet preparations' prior to the amendment on 1st September 1976.3. The legal effect of the terms 'namely' and 'including' in statutory interpretation.4. Validity of the tax levied on 'tooth-paste' and 'tooth-brushes' under Entry No. 36 before the amendment.Detailed Analysis:1. Interpretation of Entry No. 36, Schedule I of the Andhra Pradesh General Sales Tax Act, 1957:The primary issue is whether the term 'cosmetics and toilet preparations, namely, face powders, talcum powders, hair lotions, creams and pomades' includes 'tooth-paste' and 'tooth-brushes' before the amendment on 1st September 1976. The term 'namely' used in the entry is crucial in determining whether the list is exhaustive or illustrative. The court noted that the term 'namely' is restrictive, meaning it confines the general expression to the items listed. This interpretation was supported by various legal dictionaries and judicial precedents.2. Whether 'tooth-paste' and 'tooth-brushes' fall under the category of 'cosmetics and toilet preparations' prior to the amendment on 1st September 1976:The court examined whether 'tooth-paste' and 'tooth-brushes' could be considered as 'cosmetics and toilet preparations' under Entry No. 36 before the amendment. It was argued that in common parlance and commercial sense, 'tooth-paste' and 'tooth-brushes' are not understood as 'creams' or 'pomades,' which are explicitly listed in the entry. The court concluded that these items do not fall within the scope of the listed items under Entry No. 36 as it stood before the amendment.3. The legal effect of the terms 'namely' and 'including' in statutory interpretation:The court emphasized the distinction between 'namely' and 'including.' 'Namely' is used to restrict the general term to the items listed, making the list exhaustive. In contrast, 'including' is illustrative and suggests that the list is not exhaustive. The court cited the Supreme Court's interpretation in State of Tamil Nadu v. Pyare Lal Malhotra and other cases to support this distinction. The change in the wording of Entry No. 36 from 'namely' to 'including' in subsequent amendments further highlighted the legislative intent to make the list exhaustive initially and then illustrative.4. Validity of the tax levied on 'tooth-paste' and 'tooth-brushes' under Entry No. 36 before the amendment:The court reviewed the historical context and administrative practices, including a circular issued by the Board of Revenue, which stated that 'tooth-paste' and 'tooth-brushes' were considered general goods before 1st September 1976. The court held that the inclusion of these items in the entry from 1st September 1976 was clarificatory and not retroactive. Therefore, the tax levied on 'tooth-paste' and 'tooth-brushes' under Entry No. 36 before the amendment was invalid.Conclusion:The court overruled the earlier decision in T.R.C. Nos. 37, 45, and 49 of 1978, holding that 'tooth-paste' and 'tooth-brushes' were not covered by Entry No. 36 as it stood before the amendment. The levy of tax on these items as scheduled goods prior to 1st September 1976 was declared illegal and invalid. Both writ petitions were allowed, and the tax assessments were set aside.