GULATI, J. :- This is a reference Section 11(4) of the U.P. Sales Tax Act at the instance of the Commissioner, Sales Tax, U.P., Lucknow. The following question has been submitted for our opinion :-

"Whether in the facts and of the case hair pins, hair clips and tikulis are taxable as cosmetics and toilet requisites as defined in item No. 6 of Notification No. 905/X dated 31st March, 1950 and will be taxable at 6 per cent, of 7 per cent. ?"

2. The assessee carried on the business of manufacture and sale of hair pins, hair clips and Tikulis of plastic and other allied materials. The dispute relates to the rate of tax on the turnover of the articles mentioned above, during the period 1-4-1960 to 31st March, 1961. The assessee's contention is that these articles are unclassified goods and are taxable @ 2 per cent, whereas the contention of the Department is that they are toilet requisites and are taxable @ 6 per cent or 7 per cent, under Notification No. 905/X dated 31st March, 1956. The assessee's contention was not accepted by the Sales Tax Officer but was accepted on appeal by the Appellate Authority, whose decision the Revising Authority has also upheld. The Commissioner is aggrieved and hence this reference.

3. A Division Bench of this Court in the case of Plastic Products Ltd. v. Commr. of Sales Tax, U.P. Lucknow, 19 STC 480 : (AIR 1968 All 3) has held that only those articles which are used up or consumed in the process of application can be called as "Cosmetics and toilet requisites". The Supreme Court on the other hand in the case of State of Gujarat v. Prakash Trading Co., 30 STC 348 : (AIR 1973 SC 960 : 1973 Tax LR 1813) has held that tooth brush is a toilet requisite. Now a tooth brush is not used up or consumed in the process of application like other articles of cosmetics, such as face powder, creams etc. The view taken by this Court in the case of Plastic Products Ltd. (supra) does not, therefore, seem to be in consonance with the view of the Supreme Court and. as such, this case was referred to a larger Bench by a Division Bench before which it came up for hearing originally. That is how this case has come up before us.

4. Notification No. 905/X, dated 31st March, 1956 is a notification under Section 3-A of the U.P. Sates Tax Act (hereinafter referred to as the Act), issued by the State Government, which prescribes that the turnover in respect of the goods specified in the list attached thereto will be taxable at the rate of one anna per rupee at the point of sale by the manufacturer in the case of goods manufactured in the State of U.P. and at the point of sale by the importer in the case of goods imported in the State of Uttar Pradesh. The rate of one anna per rupee has been subsequently changed to six per cent or seven per cent. Item No. 6 in the list is Cosmetics and toilet requisites". The short question, therefore, that we have to answer is as to whether hair clips, hair pins and Tikulis fall within this entry ? namely, whether they are cosmetics and toilet requisites. At the hearing the learned Standing Counsel stated that the Department does not press its claim with regard to the Tikulis so that we are only left with hair pins and hair clips.

5. The expression "cosmetics and toilet requisites" has not been defined in the Act 50 that it shall have to be understood as in common parlance. Cosmetics, according to the Webester's International Dictionary is "a preparation designed to beautify hair, skin or complexion or to alter appearance of the body or for cleansing, colouring conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the express-ion "toilet" as "an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of one's person. "Toiletry" according to the dictionary, is "an article or preparation used in making one's toilet such as soap, lotion, cosmetics, tooth-paste, shaving cream etc. Now hair pins and ha