TMI Blog2008 (4) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1963 or whether the item would fall under entry 104 of the First Schedule, which provides for levy of tax on pressure cooker, cook and serveware, casseroles, water filters and similar home appliances not coming under any other entry in this Schedule or in the Fifth Schedule? Entry 5 of the First Schedule to the KGST Act reads thus: Sl. No. Description of the goods Point of levy Rate of tax 5. Aluminium household utensils whether made out of aluminium or aluminium alloys. At the point of first sale in the State by a dealer who is liable to tax under section 5 4 per cent Entry 104 of the First Schedule to the Act reads as under: Sl. No. Description of the goods Point of levy Rate of tax 104 Pressure cooker, cook-and-serve ware to keep food warm, casseroles, water filters and similar home appliances not coming under any other entry in this Schedule or in the Fifth Schedule. At the point of first sale in the State by a dealer who is liable to tax under section 5 12.5 per cent The reference to the Full Bench was made, because it was found that there was a divergence of opinion upon the question, one division Bench has held that aluminium non-stick wares such as frying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be brought under entry 104 of the First Schedule extracted above. Entry 104 as extracted above would clearly show that these two items can be brought only under home appliances. However, in order to attract the said entry, the 'home appliances' in the instant case frying pan and dosa thava should not come under any other entry in the First Schedule or in the Fifth Schedule. Thus, entry 104 is not attracted. Entry 5, as we have already noted, deals with aluminium household utensils. The principle that special excludes general will also apply. The Tribunal has taken the view that the two items considered will not fall either under entry 5 or under entry 104 only because these two items are non-stick wares which were not specifically included in the said two entries during the relevant period. We find that the Tribunal had observed that only vessels made wholly of aluminium and aluminium alloys will fall under entry 5. This view of the Tribunal, according to us, was not justified in view of the fact that even non-stick items are included under entry 5 at the relevant time provided the items are aluminium household utensils. From the findings of the first appellate authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not produced any material before us in support of his assertion that they are purely made of aluminium without any coating inside or outside the utensils. Traditionally, the non-stick cookware is made of either stainless or made of cast iron and now-a-days they are also made of metals such as aluminium or aluminium alloys. In the trade circle and in common parlance there is well merited distinction between aluminium household utensils on one hand and the non-stick cookware on the other. The aluminium household utensils are normally used by the people below the poverty line for the purpose of cooking their regular meal. The Legislature may be keeping in view the persons and the purpose for which these utensils are used has fixed the lower rate of tax at five per cent. For the purpose of commodity taxation this aspect may not be much relevant factor, but at the same time cannot be totally ignored. The item non-stick cookware though could be made of aluminium or aluminium alloy, in order to make it non-stick is coated with satilon both inside and outside the utensil. But the question is whether non-stick cookware could be equated with aluminium household utensil and whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, read the words as they are. If they give coherent and cogent meaning without leading to absurd or anomalous results, then the only thing that should be done is to follow the words of the statute literally. This is normally known as rule of literal interpretation. Therefore, in our view, the first approach should be, read the words as they are. Secondly, to consider whether an item falls within the meaning of an entry of a Schedule to an Act. Entry 104 speaks of pressure cooker, cook-and-serve ware to keep food warm, casseroles, water filter, and similar home appliances, but not coming under any other entry in the Schedule or in the Fifth Schedule. Under this entry, the Legislature after enumerating the goods which are used as home appliances has specifically used the expression similar home appliances but not coming under any other entry. The expression similar is an important expression. It does not mean identical but it means corresponding to or resembling to in many respects; or having a general likeness. The statute does not contemplate that the goods classified under the words of similar description shall be in all respects the same. If it did, these words wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he samples of items of aluminium frying pans and dosa thava. The first appellate authority had entered a finding after inspection of the items, that the said two items are made of aluminium, but only with a chemical coating inside the utensils to become the utensils non-stick and hence the goods will come under entry 5 of the First Schedule. This view of the first appellate authority is not accepted by the Tribunal in the second appeal field by the Revenue. The Tribunal was of the opinion that frying pan and dosa thava are similar home appliances and therefore they require to be classified under entry 104 of the First Schedule to the Act. In the tax revision case filed by the assessee, this court has taken the view that mere chemical coating inside the utensils will not alter the position and the same will nevertheless remain aluminium household utensil. The issue therefore is, in spite of such coating, whether frying pan and dosa thava are aluminium household utensils, which could be classified under entry 5 of the First Schedule to the Act. At this stage, it may be necessary to look into the reasoning and conclusion reached by this court while holding the aforesaid item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he product and in trade or commercial parlance no one would describe the satilon-coated aluminium products as aluminium household utensils. If this be the correct view, as we think it is, with great respect to the learned Judges who decided P. Ratnakaran's case (S.T. Rev. No. 49 of 2003), the view that frying pan and dosa thava coated with satilon would come entry 5 of the First Schedule to the Act, is not the correct view. The second fallacy in the reasoning of the learned judges appears to be that they were more swayed by the findings of the first appellate authority. It is no doubt true that the first appellate authority on inspection of the items has come to the conclusion that frying pan and dosa thava are made of aluminium and therefore the said items are household utensils. This finding of fact normally is not disturbed by the High Court while exercising its revisional jurisdiction, but, at the same time, if that finding of fact is wholly perverse, then it would be certainly a question of law and the revisional court can exercise its revisional power to correct that perverse finding. The first appellate authority having said that the commodities in question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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