TMI Blog2008 (3) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... nexures A and A1 to A6 deserve to be quashed so far they relate to levy of tax and penalty on the sales of mosquito repellents at 12.5 per cent. In the result, the present writ appeal is allowed. The impugned order of the learned single judge dated April 2, 2007 passed in W.P. No. 5507 of 2007 is hereby set aside. - W.A. No. 688 of 2007 - - - Dated:- 19-3-2008 - GOPALA GOWDA V. AND ARALI NAGARAJ , JJ. The judgment of the court was delivered by ARALI NAGARAJ J. The appellant herein has challenged the correctness of the order of the learned single judge of this court dated April 2, 2007 passed in W.P. No. 5507 of 2007 declining to interfere with the combined reassessment and penalty orders dated January 29, 2007 (vide annexures A and A1 to A6) for the months from April 2006 to October 2006 passed by the Deputy Commissioner of Commercial Taxes, Audit-43, DVO-4 (hereinafter referred to as, the assessing authority , for short) assessing the tax on the turnover relating to sales of mosquito repellents at 12.5 per cent under the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as, the KVAT Act , for short). The brief facts leading to this appeal are as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent view inconsistent with the said circular and as such, the alternative remedy though was available to the appellant-assessee was not efficacious and therefore, it approached this court by filing said writ petition. However, the learned single judge did not accept the said contention of the assessee on the ground that the said orders impugned therein were not passed by the assessing authority on the basis of the said circular. Besides this, the decision of this court in the case of Balaji Computers v. State of Karnataka reported in [2006] 147 STC 269 as to the maintainability of the writ petition despite there being availability of alternative remedy was not considered by the learned single judge. Heard the arguments of Sri Indira Kumar, the learned Senior Counsel for the appellant-assessee and Sri Gangadhar Sangolli, the learned AGA for the respondents. While placing his reliance on the decision of this court in the case of Balaji Computers [2006] 147 STC 269, the learned Senior Counsel for the appellant submitted that the alternative remedy that was available to the appellant before the Joint Commissioner of Commercial Taxes was not efficacious one in view of the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Filterco v. Commissioner of Sales Tax, Madhya Pradesh reported in [1986] 61 STC 318, wherein it is held as follows: Held, (i) that the order passed by the Commissioner was clearly binding on the assessing authority under section 42B(2) of the Act and though it was open to the appellants to urge their contentions before the appellate authority, the Appellate Assistant Commissioner, that would be a mere exercise in futility when a superior officer, the Commissioner, had already passed a well-considered order in exercise of his statutory jurisdiction under section 42B(1). Further, a substantial portion of the tax had to be deposited before an appeal or revision could be filed. In such circumstances, the High Court ought to have decided the petition on the merits; Following the abovesaid decisions of the honourable Supreme Court and this court, we are of the considered opinion that alternative remedy by way of appeal that was available to the appellant before the Joint Commissioner of Commercial Taxes was not efficacious and it is also futile exercise of right by the assessee and therefore the learned single judge was not justified in declining to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 22 and 24, shall be liable to pay tax, on his taxable turnover, (a) in respect of goods mentioned in, (i) Second Schedule, at the rate of one per cent, (ii) Third Schedule, at the rate of four per cent, and (iii) Fourth Schedule, at the rate of twenty per cent. (b) in respect of other goods, at the rate of [twelve and one half] per cent. Entry 23 of the Third Schedule annexed to the KVAT Act reads as under: Chemical fertilizers, chemical fertilizer mixtures, bio fertilizers, micro nutrients, gypsum, plant growth promoters and regulators; insecticides, pesticides, rodenticides, fungicides, weedicides, herbicides, Section 3(e) of the Insecticides Act, 1968, which defines insecticide , reads as under: Section 3(e) 'insecticide' means, (i) any substance specified in the Schedule; or (ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the official Gazette, include in the Schedule from time to time; or (iii) any preparation containing any one or more of such substances; Further, it could be seen from item No. 16 of the Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icals which is manufactured and sold under licence issued under the Insecticides Act, 1963 and it will fatally affect the nervous system of mosquitoes, it is to be classified as an insecticide till it was specifically classified from April 1, 1991 onwards. Sri Indra Kumar, the learned Senior Counsel appearing for the appellant, has rightly placed reliance on the decision of the Allahabad High Court in the case of Knight Queen Industries (P.) Ltd. v. State of U.P. reported in [2006] 145 STC 226, wherein the High Court of Allahabad, has also held, following the decisions of the High Courts of Madras and Kerala referred to supra, that mosquito repellent falls within the definition of insecticide . We respectfully agree with the view taken by the High Courts of Madras, Kerala and Allahabad in the said decisions and hold that mosquito repellent is an insecticide . Further, it is not in dispute that the mosquito repellents were manufactured by the said company, viz., Godrej Sara Lee Ltd., of which the assessee has been an agent, under the licence obtained under the provisions of the Insecticides Act, 1968 and insecticide is listed under List 23 of the Third Schedule to the KVA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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