TMI Blog2023 (4) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... Mosquito Repellant , thereafter one is not required to go to the definition under another Act namely Insecticides Act. Sl.No.66 of Notification SRO 82/06 dated 21.01.2006 issued under Section 6(1)(d) of the Kerala VAT Act which covers Mosquito Repellants - Even otherwise it is required to be noted that Entry 44(5) which includes insecticides relates to products which are used in agricultural operations. All the products in the Entry are used in the agricultural field in relation to growing of agricultural products and controlling of pets, insecticides etc. which are attacking the plants. Therefore, in view of the specific Entry 66 of Notification SRO 82/06 dated 21.01.2006 the aforesaid products namely Mosquito Repellants, electric or electronic mosquito repellants, gadgets and insect repellants, devices and parts and accessories thereof are rightly classified as Mosquito repellants. In the present case under the KVAT Act there is a specific Entry Mosquito repellant so far as the product electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof are concerned and therefore the said specific entry shall be applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to therapeutic prophylactic properties the same would fall under Entry 36(8) (h) (vi) as claimed by the appellant and would not fall under the residuary entry as claimed by the Revenue. To that extent the impugned judgment and order passed by the High Court deserves to be quashed and set aside. The impugned judgment and order passed by the High Court in so far as the products Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers; Harpic Toilet Cleaner and Lizol Floor Cleaners is hereby confirmed. So far as the impugned judgment and order passed by the High Court with respect to Dettol Antiseptic Liquid is concerned, the impugned judgment and order passed by the High Court is set aside and it is held that the product Dettol would fall under Entry 36(8) (h)(vi) of Schedule III of the KVAT Act and shall be liable to be taxed at 4%. Appeal allowed in part. - M. R. SHAH And KRISHNA MURARI , JJ. For the Appellant : Mr. Braj K Mishra, Adv. Mr. Abhishek Yadav, Adv. Ms. Aparna Jha, AOR For the Respondent : Mr. R. Sathish, AOR Mr. C. K. Sasi, AOR Mr. Abdulla Naseeh V T, Adv. Ms. Meena K Poulose, Adv JUDGMENT M. R. Shah , J. 1. Feeling aggrieved a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties, but is used only for cleaning purposes. 2.2 The order passed by the Commissioner of Commercial Taxes holding the above was the subject matter of appeal before the High Court. The High Court by the impugned judgment and order has dismissed the said appeal confirming the order passed by the Commissioner of Commercial Taxes. The impugned judgment and order passed by the High Court is the subject matter of the present appeal. 2.3 Before we consider the submissions made on behalf of the respective parties the relevant entries relied upon by the respective parties are required to be referred to which are as under: Entry 44 of the Third Schedule reads as follows: Sl. No. Description HSN Code 44 Fertilizers, pesticides, weedicides, insecticides, fungicides, herbicides, rodenticides, antisprouting products and plant growth regulators, biofertilizers, micronutrients and similar products 5 Pesticides, weedicides, insecticides, 3808 fungicides, herbicides, rodenticides, antisprouting products and plant growth regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the High Court has also erred in holding that the product Dettol will fall under the residual entry i.e. Sl.No.103 of SRO 82/2006 and not under Entry 36(8) (h) (vi) of III Schedule of the KVAT Act. 4.3 Now so far as the product Mortein range Mortein Spray is concerned, it is vehemently submitted by learned counsel appearing on behalf of the appellant that even after introduction of SRO 82/2006, Mortein range Mortein Spray continue to be classifiable as insecticides, as they are manufactured under an insecticides license issued under the Insecticides Act. It is submitted that the Mortein Spray kills insects, hence even according to the respondents interpretation, Mortein Spray cannot fall under Item No.66 of SRO/2006, as Item no.66 deals only with Mosquito repellants. 4.4 In support of his submissions learned counsel appearing on behalf of the appellant has heavily relied upon the decision of this Court in the case of Ponds India Ltd. vs. CTT (2008) 8 SCC 369 (Para 35). He has also relied upon the following decisions of the Allahabad High Court and Karnataka High Court; Knight Queen Industries Pvt. Ltd. vs. State of UP, 2005 SCC Online All 1214 (Para 23 to 36) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n essential drug and hence its price was controlled under DPCO and the MRP of Dettol continues to be monitored under DPCO, 2013. 4.9 It is submitted that Dettol falls under HSN 3004 90 specifically incorporated in Entry 36(8)(h)(vi) of Schedule III, therefore Dettol is classifiable as a drug/medicine under Entry 36(8)(h)(vi) of Schedule III. It is submitted that in Note 23 of the Rules of interpretation under Entry 36 of Schedule III, the only exclusion is dietary food, diabetic food, food supplements, medicated soaps, blood albumin etc. are not excluded. 4.10 It is further submitted that most importantly HSN Code was not deleted from Entry 36(8)(h)(vi) of Schedule III, even though by virtue of notification K.G. Ext.NO.1670 dated 24.10.2006 (retrospectively effective from 01.07.2006), HSN Code was deleted in Entry 44(5) of Schedule III under which the appellant has classified Mortein range, Mortein spray, Harpic Lizol. It is submitted that therefore the Dettol continue to fall under Entry 36(8)(h)(vi). 4.11 It is further submitted that the active ingredients of Dettol are Chloroxylenol IP, Terpineol BP, Alcohol Absolute IP (denatured) and it is an antiseptic having germi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 123 of the Drugs Cosmetics Rules. It is submitted that this Court in the case of Ponds India Ltd. (supra) has considered the aforesaid aspect and had held that Vaseline White Petroleum Jelly to be a drug as it falls under Entry 28 of Schedule K provided under Rule 123 of the Drugs Cosmetics Act/Rules. 4.16 It is further submitted that the impugned judgment fails to consider the well settled principles of classification which are fundamental to any matter relating to classification under a taxing statute namely viz. (a) plain meaning to be given to the taxing provision; (b) burden to prove classification in a particular entry is always on the Revenue; (c) any ambiguity has to be resolved in favour of the assessee and in case of a reasonable doubt, the construction most beneficial to the assessee must be adopted; (d) specific entry would override a residuary entry; and (e) resort to residuary entry is to be taken as a last measure, only when by liberal construction the specific entry cannot cover the goods in question. 4.17 It is further submitted that the Gawahati High Court as well as the Rajasthan High Court in the case of Reckitt Benckiser India Ltd. vs. Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and floor respectively and therefore cannot be treated as insecticide. 6.3 It is submitted that so far as the reliance placed upon the decision of this Court in the case of Bombay Chemicals Pvt. Ltd. (supra) is absolutely misplaced and shall not be applicable in the facts of the instant case. It is submitted that in the case of Bombay Chemical Pvt. Ltd. (supra) this Court was dealing with Entry Insecticides, Pesticides, Weedicides and Fungicides etc. under the Central Exercise Salt Act, 1944. It is submitted that the said Entry is different from Entry 44 of the KVAT Act which are products exclusively dealing with the products in agricultural operations. 6.4 Now so far as the product Dettol antiseptic liquid is concerned, it is submitted that the same cannot be classified as an item used for Medicament for therapeutic or prophylactic uses. It is submitted that a medicament is an item used for therapeutic or prophylactic treatment for prevention and cure of diseases. It is submitted that the High Court has specifically found that the appellant has no case that Dettol is able to prevent or cure any disease and therefore has rightly held the Dettol is not a medicament. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case on hand while dealing with the specific entries under KVAT Act. It was a case under the Central Excise Act and the Entry corresponding to the Excise Act. In the present case under the KVAT Act there is a specific Entry Mosquito repellant so far as the product electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof are concerned and therefore the said specific entry shall be applicable in any case, the same cannot be said to be insecticides. We are in complete agreement with the view taken by the High Court that Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers products shall not be classifiable under Entry 44(5) as insecticides. 9.2 Now so far as the products Harpic and Lizol is concerned, it is the case on behalf of the appellant that the same is classifiable under Entry 44(5) of III Schedule of KVAT Act HSN Code 3808 and the said products are also classifiable as insecticides. 9.3 However, it is required to be noted that after introduction of SRO 82/06 w.e.f. 22.01.2006 the Harpic and Lizol would fall under Sl. No. 27(4) of SRO 82/06. Sl. No.27(4) thus is a specific entry. 9.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try or classification, different tests viz. the dictionary meaning, technical meaning, user s point of view, popular meaning etc. are to be applied. In paragraphs 35 38 it is observed and held as under: 35 ..while interpreting an entry in a taxing statute, the court s role would be to consider the effect thereof upon considering the same from different angles. Different tests are laid down for interpretation of an entry in a taxing statute, namely, dictionary meaning, technical meaning, user s point of view, popular meaning, etc. XXX XXX XXX 38. Whether a product would be a drug or a cosmetic sometimes poses a difficult question and, thus, answer thereto may not be easy. For the said purpose, the court may not only be required to consider the contents thereof, but also the history of the entry, the purpose for which the product is used, the manner in which it has been dealt with under the relevant statute as also the interpretation thereof by the implementing authorities. 9.8 Thus, as per the settled position of law while considering a particular entry the principles of classification which are fundamental to any matter relating to classification under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ----------------------------------------------------------------------------------------------------------------------------------------------------- CORRIGENDUM ORDER MISCELLANEOUS APPLICATION_ NO. 1764/2023 WITH INTERLOCUTORY APPLICATION NO. 99502/2023 (APPLICATION FOR MODIFICATION OF COURT ORDER) IN CIVIL APPEAL NO. 1335/2010 M/S RECKITT BENCKISER (INDIA) LTD. (NOW KNOWN AS M/S RECKITT BENCKISER (INDIA) PVT. LTD.) Versus COMMISSIONER COMMERCIAL TAXES ORS. AUGUST 18, 2023 HON'BLE MRS. JUSTICE B.V. NAGARATHNA And HON'BLE MR. JUSTICE UJJAL BHUYAN For the Petitioner : Mr. Arvind P. Datar, Sr. Adv. Mr. R. Jawahar Lal, Adv. Mr. Braj Kishore Mishra, AOR Mr. Siddharth Bawa, Adv. Mr. Anuj Garg, Adv. Mr. Abhishek Yadav, Adv. Mr. Ruchit Mohan, Adv. Mr. Mohit Sharma, Adv. For the Respondent : Mr. R. Sathish, AOR Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. ORDER Shri Arvind P. Datar, learned senior counsel appearing for the applicant herein - Appellant in Civil Appeal No.1335/2010, submitted that he has instructions to withdraw Review Petition (C) No.1179/2023, filed against the judgment of this Court dated 10.04.2023 in Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
