2008 (4) TMI 489 - SC - VAT and Sales Tax

Whether mosquito repellants and other items fall under entry 44(5) of Schedule III to the Kerala Value Added Tax Act, 2003? Held that - Kerala VAT Act is aligned with customs tariff which in turn is aligned with HSN and consequently each product in question was required to be seen in the context of HSN code and judgments based thereon. Thus keeping in mind the above controversy, set aside the impugned judgment and remit the matter to the High Court for fresh consideration in accordance with law.

Summary

Issues:
Interpretation of whether mosquito repellants and other items fall under Entry 44(5) of Schedule III to Kerala VAT Act, 2003.

Analysis:
The primary issue in this Civil Appeal was to determine if mosquito repellants and related items fall under Entry 44(5) of Schedule III to the Kerala VAT Act, 2003. The dispute arose regarding the categorization of these items for taxation purposes. The appellant argued that the items should be classified under Para 44(5) attracting a duty rate of 4%, while the Department contended that they should be classified under Section 6(1)(d) with a duty rate of 12.5%.

The High Court's judgment was scrutinized, and it was observed that the court failed to consider the Rules of Interpretation, which necessitate referring to the HSN Code number against the Tariff Item in the Third Schedule. The court highlighted the importance of interpreting Entries in the Third Schedule in conjunction with the Customs Tariff Act, 1975, and relevant judgments. The omission of the figure "3808" by the Kerala Finance Act, 2006 was also a crucial aspect that needed consideration.

The appellant had sought an Advance Clarificatory Order from the Commissioner, akin to an Advance Ruling under the Income Tax Act. However, both the Commissioner and the High Court did not adequately consider the Rules of Interpretation of the Schedules to the Kerala VAT Act, 2003. The High Court's interpretation of the HSN Codes and their relation to the Customs Tariff Act was pivotal in the analysis of the case.

The Supreme Court concluded that the High Court overlooked significant aspects and remitted the matter for fresh consideration, emphasizing the alignment of the Kerala VAT Act with the Customs Tariff and HSN Codes. The Court refrained from expressing any opinion on the case's merits and kept both parties' contentions open. It was clarified that transactions before 7th April, 2006, would not be considered, and the advance clarification would apply from that date onwards. The High Court was urged to expedite the hearing and disposal of the Statutory Appeal within six months.

In the final disposition, the Civil Appeal was concluded accordingly, with the matter being remitted to the High Court for a fresh examination in adherence to the law.