JUDGMENT
A. Lakshmana Rao, J.
1. In these two writ petitions and common question that arises for consideration is whether the goods “tooth-paste” and “tooth-brushes” were subject to levy of single point sales tax under entry 36 of the First Schedule to the A.P. General Sales Tax Act, 1957 (hereinafter referred to as “the Act”) prior to 1st September, 1976 when the said entry was amended by the A.P. General Sales Tax (Second Amendment) Act, 1976.
2. Writ Petition No. 5621 of 1980 was referred to the Full Bench by a Division Bench of this Court by its order dated 19th June, 1984 holding that the decision of a Division Bench of this Court dated 2nd August, 1978 in T.R.C. Nos. 37, 45 and 49 of 1978 required reconsideration. As the same point arises in the other writ petition also, both the writ petitions are disposed of by a common judgment. As the facts are not in dispute in either of these matters, it is not necessary to state the facts in each one of them. It will suffice if we refer to the relevant facts in W.P. No. 5621 of 1980. The petitioner is a public limited company carrying on business of manufacture and sale of medicines, tooth-pastes, tooth-brushes, shampoos and lubricating oils, etc. It is also a registered dealer under the Andhra Pradesh General Sales Tax Act. For the year 1975-76 the petitioner-company was assessed to and levied sales tax on the turnover relating to the sale of tooth-pastes and tooth-brushes at the rate of 4 per cent treating them as general goods, vide assessment order No. 2042/75-76 dated 7th September, 1976. That order was revised by the impugned order dated 26th September, 1980 taxing the sale turnover of tooth-paste and tooth-brushes under entry 36.
3. Under clause (a) of sub-section (2) of section 5, in respect of the goods mentioned in the First Schedule to the Act, sales tax is leviable at the rates and only at the point of the sale as specified in the Schedule. Item 36 of the First Schedule, which is relevant for our purpose, as it stood prior to its amendment by the A.P. General Sales Tax (Second Amendment) Act, 1976, reads as follows :
“Cosmetics and toilet preparations, namely, face powders, talcum powders, hair lotions, creams and pomades.”
4. That entry was in force upto 30th August, 1976. We are concerned in these writ petitions only with the entry 36 as it stood prior to 1st September, 1976 which is relevant for the assessment year 1975-76. It was amended by the Amendment Act 49 of 1976 with effect from 1st September, 1976 and the amended entry No. 36 is as under :
“Cosmetics and toilet preparations, namely, face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes.”
5. That entry was further amended with effect from 20th September, 1983 by Ordinance No. 19 of 1983, which was later replaced by Act No. 11 of 1984 in the following terms :
“Cosmetics and toilet preparations, including face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes.”
6. Once again that entry underwent an amendment with effect from 1st July, 1985, effected by the A.P. General Sales Tax (Amendment) Act 18 of 1985. So, as at present, entry 36 is as follows :
“Cosmetics and toilet preparations, including scents, perfumes, face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes.”
7. On the basis of the word “namely” used in the entry 36, the absence of the words “tooth-paste” and “tooth-brushes” in that entry prior to 1st September, 1976, from which date tooth-paste and tooth-brushes were included in entry 36 and the subsequent amendments of that entry in the years 1983 and 1985 by which the word “namely” was replaced by the word “including”, it was submitted by the learned counsel for the petitioners that prior to 1st September, 1976, the goods “tooth-pastes” and “tooth-brushes” were not covered by entry 36 and as such they were subject to tax not as scheduled goods but as general goods. On the other hand it was urged by the learned Government Pleader that the articles “tooth-pastes” and “tooth-brushes” were covered by the general expression “cosmetics and toilet preparations” mentioned in entry 36 and non-enumeration of those goods in the entry was not of any significance. According to the learned Government Pleader the subsequent including of the commodities “tooth-pastes” and “tooth-brushes” with effect from 1st September, 1976 in the entry was by way of abundanti cautela and was merely intended to be clarificatory.
8. So, the short but interesting question that requires to be answered is whether prior to 1st September, 1976 the goods “tooth-paste” and “tooth-brushes” were liable to tax as general goods or as scheduled goods covered by entry 36. The general expression “cosmetics and toilet preparations” used in entry 36 is not defined in the Act. That general expression is followed by the word “namely” which in turn is followed by certain enumerated goods. We have to ascertain the meaning of the word “namely” in the context in which it is used. Where that word restricts the scope and ambit of the general expression “cosmetics and toilet preparations” only to the enumerated items mentioned in the entry or it is merely illustrative, is the crucial point for consideration. The meaning of the word “namely” is given in the Webster’s Third New International Dictionary as “that is to say : to wit, specifically, especially, expressly. In Stroud’s Judicial Dictionary (Fourth Edition) “namely” means “by name” or “that is to say”. It is stated that the word “namely” indicates “what is included in the previous term” in constradistinction to the word “including” which imports “addition, i.e., indicates something not included”. Explaining the meaning of the words “namely” it is stated in Venkatramaiya’s Law Lexicon, 2nd Edition, 1983 that “it is restrictive in the sense that the general expression which precedes the word ‘namely’ is confined to the itemised expressions that follow the word ‘namely’. Consequently the meaning of the word ‘namely’ can only be restrictive and can be neither illustrative nor expansive.”
9. In Commissioner of Income-tax v. Arasan Fertilisers (P.) Limited a Division Bench of the Madras High Court construed the word “namely” occurring in item 13 of the Fifth Schedule to the Income-tax Act, 1961 which reads as under :
“(13) Fertilisers, namely, ammonium sulphate, ammonium sulphate nitrate (double salt), ammonium nitrate, calcium ammonium nitrate (nitrolime stone), ammonium chloride, super phosphate, urea and complex fertilisers of synthetic origin containing both nitrogen and phosphorus, such as ammonium phosphates, ammonium sulphate phosphate and ammonium nitro phosphate.”
and held
“that by the use of the word ‘namely’ in item 13, the legislature has restricted the application to those enumerated items and since the bonemeal manufactured by the assessee is not one of those enumerated items, the assessee is not entitled to the rebate claimed.”
10. Following that decision, another Division Bench of that court reiterated in a case arising under the provisions of the Tamil Nadu General Sales Tax Act, 1959 that the meaning of the word “namely” can only be restrictive and can be neither illustrative nor expansive. The learned Judges emphasized that “there can be no doubt about the meaning of the word ‘namely’, that is, it is restrictive in the sense that the general expression which precedes the word “namely” is confined to the itemised expressions that follow the words ‘namely'”. (vide State of Tamil Nadu v. Kasiraja Nadar [1981] 47 STC 337.
11. We have already referred to some of the dictionaries in which the meaning of the word “namely” has been given as “that is to say”. That expression is used in section 14 of the Central Sales Tax Act, 1956. The Supreme Court explained the meaning of the expression “that is to say” in State of Tamil Nadu v. Pyare Lal Malhotra a case arising under the Central Sales Tax Act, 1956. The learned Judges referred to the meaning of that expression given in Stroud’s Judicial Dictionary and observed :
“….. the expression “that is to say” is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word ‘includes’ is generally employed ……… But, in the context of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression was apparently meant to exhaustively enumerate the kinds of goods on a given list. The purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sale. Otherwise, the listing itself loses all meaning and would be without any purpose behind it.”
12. Having regard to the plain and natural meaning of the word “namely”, the various decisions referred to above and the contents of entry 36 of the First Schedule to the Act, there can be no doubt that the legislature intended to restrict the category of goods answering the description of “cosmetics and toilet preparations” only to those articles that were distinctly specified in the entry following the word “namely” used immediately after the general expression “cosmetics and toilet preparations”. To hold otherwise will amount to obliterating the distinction between the two words “namely” and “including”. As is evident from some of the entries in the First Schedule itself, the legislature bore in mind the distinction between the two words “namely” and “including” and used deliberately the word “including” in some of the entries such as 11, 14, 26, 48, etc. In entry 36 itself the word “namely” was replaced in the year 1983 by the word including. Thus, where it was intended that the enumerated goods specified after the general expression were to be only illustrative but not exhaustive, the word “including” was used and where the intention of the legislature was that the enumerated commodities should be exhaustive, they used the word “namely” or “that is to say”. In those circumstances, we have no hesitation in holding that the word “namely” followed by the enumerated commodities was incorporated in the entry to clearly covey the intention of the legislature that the enumerated list of goods was exhaustive and not illustrative. In other words, the general expression “cosmetics and toilet preparations” followed by the word “namely” mentioned in item 36 was intended to be confined in its application only to those specified commodities enumerated in that entry after the word “namely”.
13. Then it has to be seen whether tooth-paste can be treated as an article falling within the description of “cream” specified as one of the enumerated goods in entry 36. In construing the words and expressions used under the A.P. General Sales Tax Act, we have to bear in mind the general principle that the words or expressions should be understood in the sense they are taken to mean in common parlance or in commercial sense and they should not be ascribed a meaning as understood in a technical, botanical or scientific sense. In common parlance “cream” falling under the category of cosmetics and toilet preparations, is understood as a preparation used for cleansing, softening, smoothening or protecting the skin such as cold cream, shaving cream or vanishing cream. In commercial or common parlance tooth-past is not understood as cream and in the commercial market it is not passed on as a commodity belonging to the category of creams. So also, it does not answer the description of “pomade”. Pomade is understood as a cosmetic ointment used for the hair or scalp and that is how it is understood generally.
14. However, placing strong reliance on the decision of the Supreme Court in State of Gujarat v. Prakash Trading Co. the learned Government Pleader emphatically contended that “tooth-paste” and “tooth-brushes” were toilet articles and as such they were covered by entry 36. In that decision the question that was considered, related to the scope and ambit of entry 21A of Schedule E to the Bombay Sales Tax Act, 1959, which reads :
“21A. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in entry 28 in Schedule C, and hair oil as specified in entry 7 of this Schedule).”
15. It is no doubt true that construing the words and expressions used in that entry it was held that “tooth-paste’ and “tooth-brushes” were toilet articles. But the most important and crucial distinction between the contents of entry 21A referred to in that decision and of entry 36, with which we are concerned in these cases lies in the using of the two distinct and crucial words “including” and “namely” respectively in those two entries. It makes all the difference. As we have already mentioned, the word “including” is illustrative and indicates something not included, whereas the word “namely” indicates what is included in the general expression that precedes that word and the enumerated items that follow that word are exhaustive. So, that decision, having regard to the expressions used in entry 21A of Schedule E to the Bombay Sales Tax Act, cannot be said to be applicable to the facts of this case.
16. The Division Bench of this Court dismissed T.R.C. Nos. 37, 45 and 49 of 1978 on 2nd August, 1978 at the admission stage, holding that tooth-paste was liable to be taxed under entry 36. There was no discussion in the judgment as to the meaning of the word “namely” used in entry 36. The learned Judges merely referred to the decision of the Supreme Court in State of Gujarat v. Prakash Trading Co. and stated that in that case tooth-paste was held to be a toilet article and was thus subject to tax under entry 36. With great respect, we hold that the decision of the Division Bench of this Court is not correct.
17. Another Division Bench of this Court took the view in Godrej Soaps Ltd. v. State of A.P. that
“Entry 36 names certain items as cosmetics and toilet preparations. It means that the entry is an exhaustive enumeration of the items mentioned therein.”
18. Even the Commercial Taxes Department held the view that tooth-paste and tooth-brushes were liable to single point tax from 1st September, 1976 only and prior to that date they were to be treated as general goods. This is borne out by he proceedings in B.P. Rt. No. 43/77 dated 14th February, 1977 of the Commissioner of Commercial Taxes, the relevant portion of which reads as follows :
“…… It is informed that prior to 1st September, 1976 the relevant entry under the First Schedule to the Andhra Pradesh General Sales Tax Act as ‘cosmetics and toilet preparations, namely, face powders, talcum powders, hair lotions, creams and pomades’.
The Board has all along held the view, that the tooth-paste and tooth-brushes were general goods. The said entry was amended by Act 49 of 1976 comprehensively enough from 1st September, 1976, as follows :
‘Cosmetics and toilet preparations, namely, face powders, talcum powders, hair tonics, hair oils, hair lotions, face creams and snows, pomades, depilatories, tooth-powders, tooth-pastes and tooth-brushes.’
The tooth-pastes and tooth-brushes are liable to single point tax from 1st September, 1976 only and prior to that falls under general goods.”
19. For the reasons stated above, the decision of this Court dated 2nd August, 1978 in T.R.C. Nos. 37, 45 and 49 of 1978 is overruled. We hold that the goods “tooth-paste” and “tooth-brushes” are not covered by the entry 36 as it stood prior to its amendment by the A.P. General Sales Tax (Second Amendment) Act (49 of 1976) with effect from 1st September, 1976 and the levy of tax at the point of first sale in the State in respect of those goods is illegal and invalid. Both the writ petitions are accordingly allowed. But in the circumstances there shall be no order as to costs. Advocate’s fee Rs. 250 in each.
20. Writ petitions allowed.