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2014 (11) TMI 204 - HC - VAT and Sales TaxClassification of goods - whether the item polystik compound or the rain guard compound can be classified as an adhesive or a rain guard coat or a chemical for the protection of plants - Held that:- The very process of rain guarding, as mentioned above, shows that a thin coating of a bitumen-based adhesive is smeared on the scraped portion of the trunk of the rubber tree. Then a frilled polythene skirt like material is put, which is covered with a kora cloth and then both kora cloth and polythene cover are stapled to keep it in the proper place and again another coating of adhesive is applied so as to keep the rain guard leak proof. As we understand from this literature, bitumen based compound is mainly used for the rain guarding of rubber trees, because of its high quality of adhesive nature. No doubt, water proofing quality is also one of the properties of the product, but, the fact that, it is used below the polythene sheet and again above the polythene sheet would only indicate that to safeguard the placement of the polythene sheet and kora cloth over the scrapped portion of the trunk of the rubber tree, this product is used. If it is used for the main purpose of coating on scrapped portion of the rubber plant, there was no reason why the second coating is applied on the polythene and kora cloth, as the protection is intended to the rubber plant because a leak proof material is put above the scrapped portion. Therefore, the very exercise how this compound is used during rain guarding process indicates only as a double proof to see that no water enters the scrapped bark of the rubber tree, they make the polythene guard as the skirt affixed to the trunk with double layers of rain guarding compound. The literature in local language (Malayalam) published by the Rubber Board, refers to the rain guarding compound as an adhesive product for the purpose of rain guarding during the rainy season. By no stretch of imagination, the entire process of rain guarding refers to the user of rain guard compound as a chemical or a water proof. If this has to be used as a water proof, then there is no use of polythene and kora cl to affix the polythene material to the rubber plant as such. Therefore, the entire process, what we understand from the literature and also how the product is marketed, would only indicate, that it is marketed as a strong adhesive compound rather than anything else. Therefore, the predominant use of the product would come into play and one has to go by the predominant use of the product rather than other incidental uses of the product in question. In none of the literature, it refers the user of the product as a plant protector, though, at some places, it says, the bitumen can be used as a water proof material. So far as the predominant use of the material and how it has to be dealt with is concerned, we refer to Appplico v. State of Kerala [1999 (12) TMI 844 - KERALA HIGH COURT] - the product in question is to be classified as an adhesive and it is neither a plant protection chemical nor a water proof material - decided in favour of Revenue.
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