2006 (11) TMI 574 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Classification of mosquito repellents and related devices under the Kerala Value Added Tax Act, 2003.
2. Validity of the Notification S.R.O. No. 82 of 2006.
3. Imposition of penalty for filing untrue returns.

Issue-wise Detailed Analysis:

1. Classification of Mosquito Repellents and Related Devices:
The appellant company, engaged in the manufacture and sale of household insecticides and disinfectants, collected VAT at 4% on certain products, which was challenged by the Commercial Tax Department. The Department argued that mosquito repellents and related devices should be taxed at 12.5% as per entry 66 of S.R.O. No. 82 of 2006, bearing HSN Code 8516.79.20. The Commissioner of Commercial Taxes clarified that mosquito repellents, electric-electronic mosquito repellents, gadgets, and insect repellents are taxable at 12.5% under serial number 66 of the residuary list of items published in S.R.O. No. 82 of 2006. The company's contention that these products should be taxed at 4% under entry 44 of the Third Schedule to the VAT Act was rejected. The court upheld the Commissioner's view, stating that mosquito repellents do not fall under the general category of insecticides in entry 44 but under the specific entry 66 of S.R.O. No. 82 of 2006.

2. Validity of Notification S.R.O. No. 82 of 2006:
The appellant challenged the validity of serial number 66 inserted by Notification S.R.O. No. 82 of 2006, arguing that it was inoperative and unenforceable as it varied from HSN Code 8516.79.20. The court noted that prior to the notification, mosquito repellents warranted a levy of VAT at 12.5% under section 6(1)(d) of the VAT Act, 2003. The court found that the products in question would not fall under clause (5) of serial number 44 of the Third Schedule but under serial number 66 of S.R.O. No. 82 of 2006. The court concluded that the notification was valid and enforceable, reinforcing the tax rate of 12.5% for the specified products.

3. Imposition of Penalty for Filing Untrue Returns:
The company was served with a notice proposing a penalty of Rs. 1,16,46,886 for evading tax by filing untrue returns. The court referred to the decision in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, stating that a return cannot be said to be "false" unless there is an element of deliberateness in it. The court found that the notice did not disclose any deliberate or contumacious conduct on the part of the appellants to warrant the imposition of double the tax evaded as a penalty. The court set aside the order imposing the penalty, allowing the authorities to issue a fresh notice if they propose to impose a penalty, giving the appellants an opportunity to file objections.

Conclusion:
The appeals were dismissed, upholding the classification and tax rate of 12.5% for mosquito repellents and related devices under serial number 66 of S.R.O. No. 82 of 2006. The court also set aside the order imposing the penalty, allowing for reconsideration with proper notice and opportunity for objections.