( 1. ) THE decision of this case will also govern the disposal of Misc. Civil Case No. 79 of 1972 (M/s. N. Ganu Bhai, Raipur v. Commissioner of Sales Tax, M. P.) and Misc. Civil Case No. 78 of 1973 (Commissioner of Sales Tax v. Naaz Agency, Bhopal ).

( 2. ) IN these cases, a reference has been made by the Board of Revenue, Madhya Pradesh, under Section 44 of the M. P. General Sales Tax Act, 1958, to decide the following question of law :

(a) In Misc. Civil Cases Nos. 80 of 1972 and 79 of 1972: "whether, with effect from 15th April, 1965, ultramarine blue or ultramarine Robin blue, commonly known as neel should be taxed under entry 25 of Schedule II, Part II, of the M. P. General Sales Tax Act, 1958. " (b) In Misc. Civil Case No 78 of 1973 : "whether neel comes under entry No. 25 of Part II, Schedule II, of the M. P. General Sales Tax Act, 1958.

( 3. ) THE assessee, in the present case, deals in hair-oil, cosmetics, varnishes, floor and metal polish, ultramarine blue, etc. The dispute was whether ultramarine blue, i. e. , neel was taxable at the rate, as per entry No. 25 of Part II of Schedule II of the M. P. General Sales Tax Act, 1958, or should be taxed only under the residuary entry in Part VI of Schedule II of the said Act.

( 4. ) ENTRY No. 25 of Part II of Schedule II, prior to 15th April, 1966, was as follows :

Paints and varnishes including glue, polish, brush, sandpaper, turpentine oil, enamels and bale oil. This was taxable at 7 per cent. With effect from 15th April, 1966, the said entry was revised as under : Dyes, paints, varnishes, lacquers, enamels, glue, paint-brush, sandpaper, turpentine oil and bale oil and polish other than boot polish.

This was taxable at 10 per cent. From 1st September, 1967, the contents of the entry remained the same, but the rate was raised to 11 per cent.

( 5. ) THUS "dyes" were added and included in the said entry and as a result of this, it was contended by Shri Adhikari, the learned counsel for the respondent, that ultramarine blue, i. e. , neel should be included in the category of dyes as neel is a dye and should be taxed accordingly.

( 6. ) ADMITTEDLY, ultramarine blue, i. e. , neel is not specifically mentioned in any of the entries of Part II of Schedule II of the said Act and it is nobodys case that neel is a paint or a varnish or a lacquer or an enamel or glue or polish.

( 7. ) THE assessment of the sale of a commodity should ordinarily be with reference to the use to which that commodity is normally put to and not with reference to an occasional or extraordinary use. It is the common use which should determine how an article or commodity is to be categorised. In this sense, the use to which neel is put to is ordinarily as that of a brightening agent and is commonly used to increase whiteness of clothes and occasionally as a colouring agent for white-washing. The use of colouring is said to be when mixed with colour and other material.

( 8. ) NEEL is ultramarine blue, sold under different trade names, such as Skylark Robin, etc. According to the Concise Oxford Dictionary, "ultramarine blue" is a pigment got from lapis lazuli; artificial u. (made by mixing clay, carbonate of soda, sulphur and resin ). "lapis lazuli", according to that dictionary, is a sodium aluminium silicate containing combined bright blue pigment from it (sic ). According to the same dictionary, "blue" is a pigment, powder used by laundresses. According to Chamberss Encyclopaedia, Vol. II, page 245, blue pigments in common use by artists consists of native and artificial ultramarine, cobalt, indigo and prussian blue. Genuine ultramarine prepared from lapis lazuli and ordinary cobalt blue are permanent colour, used either alone or mixed with other pigments, chiefly for skies and distances in landscapes and by themselves or to make up grey and other mixed tints in figures painting. Owing to the exceptionally high price of real ultramarine blue, the artificial colour which is of doubtful permanency is usually su