Bath oils that are not exclusively prepared for the care of the hair and are not marketed as hair oils are not perfumed hair oils within the meaning of Item 14F(ii)(b) of Schedule 1 of the Central Excises and Salt Act, 1944.

RAMANUJAM, J

This writ appeal is directed against the judgment of Mohan, J., allowing W.P. No. 1604 of 1976 filed by the respondent herein for quashing the order, dated 12th February, 1975 of the first appellant confirming the order dated 4th May, 1974 of the second appellant which in turn confirmed the order dated 24th November, 1973 of the third appellant.

2.The facts leading to the filing of the above writ petition were as follows :

The respondent is a manufacturer of perfumeries and also other items of articles, namely, Sandanathi thailam, Bringamalika thailam, Ponnankani thailam, Araikeeraivithai thailam, etc. These thailams are prepared with gingelly oil boiling the same with natural herbs, flowers and roots of plants. They contain medicinal qualities and they are mostly used before bathing as bath oils and are not usable as hair oils for grooming the hair. The thailams manufactured by the respondent are only known in the market and in the commercial field as bath oils and they are never known either as hair oils or as perfumed hair oils; nor are they marketed as hair oils.

3.On the introduction of the Finance Bill No. 2, dated 29th May, 1971, Schedule 1 of the Central Excises and Salt Act, 1944, the following item was introduced as Item 14F (ii) which reads as under :

"Preparations for the care of the hair-

(a) Hair lotions, creams and pomades,

(b) Perfumed hair oils,

(c) Shampoos, whether or not containing soap or detergent.'

Consequent to the introduction of the said item, the samples of the thailams prepared by the respondent were taken by the Central Excise Authorities for analysis. After analysis on 15th September, 1973, the respondent was issued a show cause police enclosing the opinion of the Chief Chemist, New Delhi, dated 2nd June, 1973 and calling upon the respondent to show cause against the proposed levy of Central excise duty in respect of the thailams cleared from the respondent's factory after 29th May, 1971 under the provisions of Rule 173-G of the Central Excise Rules, 1944. The respondent in its reply dated 10th October, 1973 objected to the proposed levy contending that the thailams cannot be taken as perfumed hair oils as they are not marketed as such. However, by an order dated 24th November, 1973 the third appellant passed an order rejecting the respondent's contention and holding that the thailams prepared by the respondent fall within the expression "perfumed hair oils" and therefore, they are liable to charge for excise duty under Item 14F (ii). An appeal preferred to the second appellant failed. Thereafter, a revision petition was filed to the first appellant which also suffered the same fate. Thereafter, the respondent came to this Court by way of the above writ petition contending that the thailams prepared by it cannot in any sense be treated as "perfumed hair oils" which is the expression used in Item 14F(ii) (b).

4.Mohan, J., after hearing the rival contentions of parties, held that the thailams prepared by the respondent can only be treated as bath oils and they cannot be treated as hair oils much less perfumed hair oils. The said decision of Mohan, J., is under challenge in this appeal.

5.On a due consideration of the matter, we are inclined to agree with the view taken by the learned single Judge. Item 14F of Schedule 1 of the Central Excises and Salt Act, 1944, reads :" *

Cosmetics and toilet preparations not containing alcohol or opium, Indian hemp or other narcotic drugs or narcotics, namely :-

(i)........................

(ii) Preparations for the care of the hair-

(a) Hair lotions, creams and pomades,

(b) Perfumed hair oils,

(c) Shampoos whether or not containing soap or detergents.'

It is not the case of the appellants that the thailams prepared by the respondent could be brought either under Item 14F (ii)(a) "hair lotions, creams and pomades" or under Item 14F(ii)(c) "Shampoos whether or not containing soap ordetergents". The specific case of the appellants is that the thailams prepare