The description of a product on its packaging is an important factor in determining whether it is a cosmetic or a medicine.

( 1 ) THE short question for consideration in this revision, filed by the revenue, against the order of the Sales Tax Tribunal, Kanpur Bench, is: whether the product, namely, Roshan Shital Tail, manufactured by the assessee, is covered by the entry at serial No. 26 of Notification No. ST-II-1233/x-10 (1)-1974 dated 14th April, 1974. The entry at serial No. 26 (a), so far as relevant, is cosmetics and toilet requisites including hair oil, hair tonic, etc. Whereas, the assessing officer and the Assistant Commissioner (Judicial) [briefly A. C. (J) ] rejected the contention of the assessee that the product, namely, Roshan Shital Tail, is a medicine, the tribunal accepted the contention of the assessee, that the product was not hair oil but a medicine.

( 2 ) I have heard learned counsel for the parties at some length. Before the A. C. (J), as many as 12 pieces of evidence were supplied by the assessee. Proof No. 12 was the carton in which the product of the assessee is supplied to the customers. The description given on the carton has been reproduced by the A. C. (J) in his order. It runs as follows : roshan shital tail varshon ki athak parishratn avam pahari jari butyun se tayyar kiya gaya hai-yeh tel dimagi kamjori balon ka girna va safed hona adi men labh kari hai tatha mastisk ko shitalta pardan karta hai.

( 3 ) CONSIDERING this description, the A. C. (J) took the view that the product, namely, Roshan shital Tail, is nothing but a hair oil and it is covered by the entry at serial No. 26 (a) of the aforesaid notification. On appeal the Tribunal observed : that oil manufactured and sold by the appellant possesses medicinal properties and is used in treatment of various ailments. I, therefore, hold that it comes under the category of medicine and as such it should be taxed under the category of medicine.

( 4 ) IN my opinion, the question whether the oil manufactured by the assessee is or is not an item of cosmetic or of toilet, does not depend on the formula according to which, it is manufactured. The oil manufactured by the assessee is made of several ingredients including herbs, which may be useful for removing dandruff, preventing hair falling and which may be conducive to cooling the mind. The question is: how the product of the assessee is understood in the public, whereby the product is ultimately used. From the description given on the carton by the assessee, as reproduced by the A. C. (J) in his order, it is manifest that the oil manfactured by the assessee is to be applied mainly to human hair and, therefore, it is immaterial whether the assessee has named it as a hair oil or an oil simpliciter. The description shows that the oil is useful for headache, mental weakness, for preventing hair falling, baldness and preventing the hair from being turned into grey. From this description it is clear that if oil is applied to hair, then the abovementioned qualities may follow. The argument of learned counsel for the assessee is that this description has not been correctly reproduced by the A. C. (J) in his order. No description otherwise has been shown to me to establish the fact that the description, as given by the A. C. (J)in his order, is incorrect. An appeal was filed to the Tribunal but the assessee did not raise any contention in the grounds of appeal that the description given on the carton was not correctly reproduced by the A. C. (J) in his order. That was the first stage to controvert the description as reproduced by the A. C. (J) in his order. The Tribunal also does not say that the description, as reproduced from the carton, by the A. C. (J) is incorrect. The description as reproduced by the A. C. (J) is, therefore, taken to be correct.

( 5 ) THEN the argument made by the learned counsel for the assessee, is that there were so many other qualities of the oil, but due to lack of space on the carton all the qualities could not be printed and, therefore, the word "adi" meaning thereby "etc. " was printed