MEHTA, J. - In this reference two questions have been referred by the Tribunal as under :-

"(1) Whether on the facts and in the circumstances of the case the sale of Ipco Dental Creamy Snuff by the applicant under its bill dated 25th December, 1962, is covered by entry 49 in Schedule A to the Bombay Sales Tax Act, 1959 ?

(2) If the answer to the above question is in the negative, whether the said sale is covered by entry 13 in Schedule C to the Act ?"

The short facts which have given rise to this reference are as under :-

The applicant is a manufacturing chemist who sells the preparation described as "Ipco Dental Creamy Snuff" as per leaflet at annexure A. The preparation contains 55 per cent. snuff, 40 per cent. water, 2.5 per cent. preservative and 2.5 per cent. flavouring agents and it is in the form of a paste filled in collapsible tubes, which are packed in cartons. The leaflet at annexure A describes the preparation as Ayurvedic Ipco Dental Creamy Snuff, Tobacco Paste. It was claimed that it strengthened teeth and sweetened breath. It was stated that the paste was highly effective in cases of even extreme dental pain such as toothache, swelling and decay of gums, bleeding from gums etc. It was stated that it definitely strengthened weak and spongy gums and destroyed harmful bacteria and also prevented pyorrhoea. It was further stated that those people who were highly sensitive to the effects of tobacco should start with small quantities of the paste until they got accustomed. It was also stated that the use of that unique paste stimulated the mind and gave a spur to action. On the application of the applicant under section 52 in respect of the bill for sale dated 25th December, 1962, the Deputy Commissioner of Sales Tax held that the article was one of toilet under entry 21-A in Schedule E. In appeal the Tribunal held that the preparation was not merely a form of tobacco, but was a preparation from snuff. The Tribunal also rejected the alternative contention that it was a drug within the meaning of entry 13 of Schedule C. As the Tribunal did not accept the finding that the article was a toilet preparation, it held that the same was covered only under the residuary entry 22 in Schedule E. The State had not questioned the finding as regards it being not a toilet article and, therefore, the Tribunal has referred only the aforesaid two questions to this Court.

The relevant entry 49 in Schedule A runs as under :

"Tobacco as defined in item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944."

Item 4 in the said Central Excises and Salt Act, 1944, reads as under :

"'Tobacco' means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco-plant, but does not include any part of a tobacco-plant while still attached to the earth."

Therefore, so far as the definition is relevant for our purpose it defines "tobacco" to mean any form of tobacco whether manufactured or not. The expression "manufacture" is defined in section 2(f) of the said Central Excises and Salt Act, 1944, as under :

"'Manufacture' includes any process incidental or ancillary to the completion of a manufactured product; and

(i) in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco or snuff;..."

As entry 4 in the Schedule to the Central Excises and Salt Act, 1944, defines tobacco as any form of tobacco, whether manufactured or not, it would include not only the manufactured products but in relation to tobacco would even include various preparations which are mentioned in section 2(f), clause (i), that is to say, it would include even snuff. The learned Advocate-General, however, argued that even if the definition of tobacco includes such a form of manufactured tobacco, i.e., its preparation in the form of snuff, it would not include its further manufacture of snuff into some ot