TMI Blog2009 (3) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained the writ petition. The impugned order is set aside accordingly and the appeal is allowed. - Civil Appeal No. 1888 of 2009 - - - Dated:- 18-3-2009 - SINHA S.B. AND MUKUNDAKAM SHAA DR.RM AND LODHA R.M. JJ. Rajiv Tyagi, Ms. Chanchal Biswas and Vikas Mishra, Advocates, for the petitioner. M.L. Varma, Senior Advocate (R. Sathish, Advocate, with him) for the respondents. -------------------------------------------------- ORDER Leave granted. The appellant is manufacturer of coils, mats, aerosols, liquids/refills, etc., which are used for driving away and destroying mosquitoes. The appellant is an assessee under the Kerala Value Added Tax Act, 2003 (for short, "the Act"). The assessment year in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of transfer of the right to use any goods for any purpose whether or not for a specified period, at the rate of four per cent at all points of such transfer." The Revenue, however, contends that section 6(1)(d) shall apply. Clause (d) of sub-section (1) of section 6 reads thus: "(d) in the case of goods not falling under clause (a) or (c) at the rate of 12.5 per cent at all points of sale of such goods within the State. Government may notify a list of goods taxable at the rate of 12.5 per cent;" Our attention has also been drawn to entry 3808 of Chapter 38 of the Customs Tariff Act based on HSN Code which was applicable during the said assessment year; relevant portion whereof reads as under: "3808 Insecticides, rodentic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile interpreting the commodities in the Schedules, the following guidelines may be followed. I. ... II. ... III. The commodities which are given eight-digit HSN number shall mean that commodity which bears that HSN number." However, so far as the Revenue is concerned, it relies on clause IV thereof which reads as under: "IV. As an exception to the above rules, there are certain entries in the Schedules, which bear eight-digit numbers but the four-digit heading numbers of such commodities are given for some other commodities mentioned elsewhere. In such cases, the four-digit heading shall include only those commodities under that heading excluding that commodity for which the eight-digit numbers are given. Similar cases are availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or direction, directing the respondents to refrain from enforcing the assessment order, exhibit P11, and demand pursuant thereto against the petitioner, pending disposal of the writ petition; (iii) To declare that the sales turnover of products falling within the description "insecticides and pesticides" which are manufactured under licence under the Insecticides Act and falling within the description of entry 44(5) of III Schedule of KVAT Act is liable to be taxed only at four per cent and levy of tax at 12.5 per cent is illegal and unauthorised. (iv) To stay the operation of exhibit P11 final assessment order for the assessment year 2005-06, pending disposal of the W.P. (C); and (v) to grant such other and further reliefs as this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of its writ jurisdiction under article 226 of the Constitution of India as it is well known that when an order of a statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, alternative remedy may not be a bar. (See: Whirlpool Corporation v. Registrar Trade Marks, Mumbai [1998] 8 SCC 1 and Committee of Management v. Vice Chancellor [2008] 16 SCALE 310). For the reasons aforementioned, we are of the opinion that it is a fit case where the High Court should have entertained the writ petition. The impugned order is set aside accordingly and the appeal is allowed. The appellant may be permitted to amend the prayer portion of the writ petition. We, however, make it clear that we have not go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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