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2015 (3) TMI 787 - SC - VAT and Sales TaxClassification of goods - Ujala Supreme and Ujala Stiff and Shine - it is claimed that Ujala Stiff and Shine is a liquid form and is covered under primary form - Whether both the items fall under residuary entry 103 of S.R.O. No. 82 of 2006 which provides for rate of tax on items not covered by any of the entries in the list provided in the notification or by any entry of any of the Schedules to the Act? - Held that - provision deals with the levy of tax on sale and purchase of goods and provides various facets. It applies to an importer, casual trader, agent of a non-resident dealer, dealer in jewellery or gold, silver & platinum group metals or silver articles or contractor of State Government or the Central Government, etc. regardless of the turnover. Under Clause (a), in respect of the goods specified in the second and Third Schedule, tax is payable at the rate specified in the said schedule. Tax is payable at the point of sale. As is seen, clause (b) stands deleted. Under Clause (d), goods not falling under Clauses (a) or (c), tax is payable at the rate of 12.5% at the point of sale within the State. The legislature has conferred the power on the Government to notify a list of goods taxable at the rate of 12.5%. Harmonious construction of Clause (a) and (d) clearly demonstrates that in case of notified goods, the rate of tax would be 12.5%. Similarly, in case of goods not falling under Clause (a), that is Second and Third Schedule, the rate of tax would be 12.5%. It requires to be clarified here that this does not necessarily mean that exempted goods would be taxable by virtue of Clause (d). It is luculent that the commodities mentioned in the schedules have been allotted code numbers developed by International Customs Organisation, which is known as Harmonised System of Nomenclature (HSN). The same has been adopted in the Customs Tariff Act, 1975. Where the commodities have been given HSN numbers, the same meaning would be given for classification under the Customs Tariff Act, 1975. The rules accept that for certain entries, HSN numbers are not given. Where commodities are not ascribed any HSN number, they would be interpreted as understood in common or commercial parlance. In case of inconsistency between meaning of a commodity without HSN number and a commodity with HSN number, the commodity without HSN number should be interpreted by including the commodity in that entry, which has been given HSN number. Thus, primacy is given to HSN number classification and adoption/interpretation of HSN classification under the Customs Tariff Act, 1975 and any inconsistency or debate would be decided with the commodity being categorized against the HSN number. Respondents have not invoked and there is no lis as regards the applicability in Entry 27. As per the respondent and the impugned judgment, the residuary Entry, that is, Entry No. 103, is attracted. Needles to say, the residuary entry would apply only when the goods are not covered under any other Entry of the List or any other Entry in the Schedules. To elaborate, the case of the respondent is that two goods under consideration are not covered by any specified Entry in the Schedules as well as in SRO 82/2006 dated 21.01.2006. If the goods in question are covered under any of the Entries in the Schedule, Entry 103, which is the residuary Entry, would not get attracted. In such cases, the tax rate as stipulated in the Schedule, applicable to the Entries would be applicable. It is clear as crystal that two goods/products have been held to be covered under the HSN Code 3905, and HSN Code 3204.12.94 and hence, there can be no shadow of doubt that the said entries fall under entry numbers 155(8)(d) and 118(5) of the list A of Third Schedule of the 2003 Act covering industrial inputs and packaging materials, but that would not be material and relevant regard being had to the rules of interpretation which are applicable. The subject matter of the list will not fall under residuary entry 103 in SRO 82/2006 dated 21.01.2006, if the goods in question fall in any entry of any of the schedule. That is what is conveyed by the language employed in Entry No. 103. The said Entry, as we find, does not stipulate or carves out any exception in respect of list A to the Third Schedule. That being the position, once goods fall under any of the HSN classification, that is, the goods/commodities that are included in list A to the Third Schedule, entry 103, which is residuary in nature, would not get attracted. It has been laid down that after devolution with water the goods continue to remain classified under the same HSN number. This means that the goods remain in list A of the Third Schedule. It may be noted that the position would have been totally different had the goods in question been separately and specifically itemized in SRO number 82/ 2006 dated 21st January 2006. The goods which are specifically mentioned in any of the entries of the said SRO, would be chargeable to tax @ 12.5%. But that is not the lis here, for the Revenue has included the goods in the residuary Entry 103 and the said entry, by no stretch of reasoning, can be made applicable. - High Court, has missed the issue in entirety and, therefore, we are obliged to dislodge the impugned judgment and orders. However, if any assessee-appellant has paid the amount of VAT to the State Government, they will not be entitled to get any refund of the said amount. - Decided in favour of assessee.
Issues involved:
1. Classification of "Ujala Supreme" and "Ujala Stiff and Shine" under the Kerala Value Added Tax Act, 2003. 2. Applicability of Harmonized System of Nomenclature (HSN) for classification. 3. Interpretation of the term "manufacture" under the Central Excise Tariff Act, 1985. 4. Application of common parlance or commercial parlance test. 5. Determination of tax rate under the Kerala Value Added Tax Act, 2003. Detailed Analysis: 1. Classification of "Ujala Supreme" and "Ujala Stiff and Shine" under the Kerala Value Added Tax Act, 2003: The appellant, M/s. M.P. Agencies, sought clarification on the tax rate for "Ujala Supreme" and "Ujala Stiff and Shine" from the Commissioner of Commercial Taxes, who classified these products as "instant whiteners" and "laundry whiteners" under Entry No. 27 of SRO 82/06, attracting a tax rate of 12.5%. The High Court remitted the matter back to the Commissioner, who again classified the products under Entry 103 of SRO 82/2006, maintaining the 12.5% tax rate. The High Court upheld this classification, rejecting the appellant's contention that the products should be classified under specific entries in the Third Schedule of the 2003 Act. 2. Applicability of Harmonized System of Nomenclature (HSN) for classification: The appellant argued that the products should be classified based on the HSN codes, specifically under Entry 155(8)(d) for "Ujala Supreme" and Entry 118(5) for "Ujala Stiff and Shine," both of which fall under the Third Schedule of the 2003 Act. The Supreme Court emphasized the importance of HSN codes in classification, as adopted by the Customs Tariff Act, 1975, and stated that commodities with HSN numbers should be interpreted accordingly. 3. Interpretation of the term "manufacture" under the Central Excise Tariff Act, 1985: The appellant contended that no new product emerged from the dilution process of AVP (Acid Violet Paste) and PVA (Poly Vinyl Acetate), and thus, no manufacturing process was involved. The Supreme Court referred to previous decisions by the Central Excise, Customs & Gold (Control) Appellate Tribunal (CESTAT), which held that the dilution of AVP with water did not result in a new product and that the diluted product remained classified under the same HSN code. 4. Application of common parlance or commercial parlance test: The Commissioner and the High Court applied the common parlance test, concluding that "Ujala Supreme" and "Ujala Stiff and Shine" were known as laundry whiteners and stiffeners, respectively, in the market. However, the Supreme Court held that the common parlance test should not override the HSN classification, especially when the products are listed under specific HSN codes in the Third Schedule. 5. Determination of tax rate under the Kerala Value Added Tax Act, 2003: The Supreme Court clarified that goods listed under specific HSN codes in the Third Schedule should not be classified under the residuary Entry 103, which attracts a 12.5% tax rate. Instead, they should be taxed at the rate specified in the Third Schedule. The Court disallowed the application of the residuary entry for products already classified under specific HSN codes. Conclusion: The Supreme Court set aside the High Court's judgment, ruling that "Ujala Supreme" and "Ujala Stiff and Shine" should be classified under their respective HSN codes in the Third Schedule, not under the residuary Entry 103. However, the Court stipulated that any VAT already paid by the appellants would not be refunded. The appeals were allowed, but no costs were awarded.
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