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Judgment
Mohan, J.—This writ petition is for certiorari to quash the order of the third respondent (the Assistant Collector of Central Excise,
Pondicherry) dated 24-11-1973, which was confirmed in appeal by the Appellate Collector of Central Excise, Madras (second respondent) and
further confirmed in revision by the Government of India on 5-2-1975. The short facts are as follows : The petitioner manufactures perfumeries and
also other items of goods, namely, sandanathi thailam, Bringamalike thailam, Ppnnanmuni thailam, arakeeravithai thailam etc. These thailams are
prepared with gingelly oil, boiled with natural herbs, flowers and roots of plants under an old and immemorial system of native preparations. They
contain medicine, qualities and are used before bathing as bath oils and are not usable as hair oils for grooming the hair. The thailams prepared by
the petitioner are widely used and commonly known in the market and the commercial field only as bath oil. They are never known as perfumed
hair oil, much less hair oil. Nor are they marketed as hair oil. On the contrary, they are marketed only as bath oils.
On the introduction of the Finance Bill No. 2 of 1971, dated 29-5-1971, Schedule I of the Central Excise and Salt Act, 1944, under item 14-F (ii)
was introduced. That reads-
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 this, samples of the thailams prepared by the petitioner were sent to the Central Excise authorities for analysis. On 15-9-1973, a
show cause notice was issued to the petitioner enclosing an opinion of the Chief Chemist, New Delhi dated 2-6-1973, and calling upon the
petitioners to explain against the proposed levy of central excise duty being issued in respect of the thailams cleared from the petitioners ''factory on
29-5-1971 under the provisions of the Rule 173-G of the Central Excise Rules 1944. The petitioner in their reply dated 10-10-1973 contended
that the thailams were not perfumed hair oils nor are they marketed as such. By an order dated 24-11-1973, this contention was overruled and it
was held that it was perfumed hair oil and are excisable goods under item 14-F(ii). An appeal preferred to the appellate authority also did not meet
with success. The revision to the Government of India suffered the same fate. Hence the present writ petition.
It is the contention of the learned counsel for the petitioners that the reasoning of the excise authorities to hold that the various thailams
manufactured by the petitioners are perfumed hair oils is incorrect. In the commercial field it is not understood as perfumed hair oil. Nor again, the
petitioner markets them as hair oil. They are thailams intended for cooling the body. In any event, it cannot be considered as an item of cosmetics
and toilet preparations.
The learned counsel for the respondents in meeting these contentions and supporting the impugned orders submits that it is not necessary that
perfumed hair oils should be hair oil meant for grooming the hair. On the contrary so long as it is used for the care of the hair, it is excisable under
item 14-F(ii).
Item 14-F of Schedule I of the Central Excise and Salt Act 1944, (hereinafter referred to as the Act) 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.
In the commercial field, .certainly the various thailams maufactured by the petitioners are neither understood nor sold as perfumed hair oils. Why
I want to stress this aspect is this is a fiscal enactment which, it is well settled '' in law, must be construed strictly. This court as well as the Supreme
Court had taken the view that there is a wide discretion for the department to classify for purposes of levy of excise duty. But where such
classification is '' perverse, the court can interfere. The Collector of Customs, Madras Vs. K. Ganga Setty, . Can it be said in this case that the
classification made by the department that these thailams are perfumed hair oils is perverse? In order to answer this question, It is necessary to
look at the impugned Orders. The original authority takes the view-
It is used on the hair. Whether it is used in the body or for the bare head person is not a relevant fact here. Any oil can be used for any purpose. It
is held that they are capable of use as hair oil. As regards the manufacturers saying that the thailams are used only before bath and not after bath
for grooming the hair, it is also not fully acceptable. It is of course accepted that they are used before bath. Even before bath, they are used for the
hair and are meant for better luxuriant growth of hair. But its use after bath for grooming the hair cannot be ruled out"".
I am totally unable to agree. Certainly not one of these thailams it ever used after bath. Nor again, has the petitioner claimed that these thailams
are meant for luxuriant growth of hair. The learned counsel for the petitioner produces the relevant advertisement. In not one of them, is there any
mention about the growth of the hair. The reason why I refer to this aspect will be evident because in the appellate order the second respondents
say-
Further, while these oils might be used as cooling bath oils, yet their use as hair oils as well i.e. for the care of the hair, cannot be ruled out, as the
figure of the women displaying her lavishly grown and flowing hair is suggestive of such use"".
To say the least, this approach is rather lay than legal.
Then again, the Government Of India states-
A perfumed hair oil is not necessarily required to be retained on the hair. It can go in the roots of hair as well. What is important is the application
on hair and whether it is used on body as well or not or retained or washed off the hair, is immaterial. Consequently, the said products are liable to
central excise duty under tariff item No. 14-F of Central Excise Tariff.
This reasoning again is improper and is unacceptable to me. Taken in conjunction with item ""hair lotions creams and pomades"", certainly
perfumed hair oil is meant as hair oil for grooming the hair and not for a hair oil applied to the hair before bath and then washed off. Certainly, no
person in commercial field will ever consider these thailams as hair oil and that is the proper perspective in which the classification should be made.
In common parlance, these are understood as thailams. In fact, in a way it is also admitted by the respondents. Looked at from any point of view, I
am unable to agree that the impugned orders could ever be sustained and the levy of excise duty on these thailams in perfumed hair oils attracting
item 14-F (ii) of Schedule I of the Act will have to be necessarily quashed. The writ petition is therefore, allowed. However, there will be no order
as to costs.