TMI Blog1994 (4) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... hrin 4 per cent in liquid form is poured and, thereafter, the tablets are mechanically sealed. This mat is put into the EMR at a space specially meant for it and when the electric power is switched on, allethrin contained in the mat gradually evaporates and allethrin vapour spreads in a room and kills mosquitoes. It is contended that, petitioner No. 1, from its factory, consigns EMR and mats to its various branches in the country and they are sold separately. So far as the mats are concerned, they are sold under the trade name Jet mat . 3.. It is also pointed out that, Ahmedabad branch of petitioner No. 1, in the State of Gujarat, is a dealer registered under the Gujarat Sales Tax Act, 1969. That branch was started in the financial year 1988-89 and while assessing petitioner No. 1 for the years 1988-89 and 1989-90, respondent No. 1 treated the sales of mats mad by the petitioner as insecticide covered by residuary entry 13 of Schedule III appended to the Gujarat Sales Tax Act and the petitioners were given the benefit of concessional rate on the basis of entry 98 of notification issued by the State Government under section 49(2) of the Act. It is further pointed out that, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Sales Tax and further appeal to the Tribunal against the order passed by the Commissioner. However, it is contended by Mr. Pathak that it is no use approaching the appellate authority mainly because the Deputy Commissioner has decided a similar question under section 62 of the Sales Tax Act and has arrived at the conclusion that similar mats would be considered as mosquito repellents and not insecticides. He further submitted that the question involved in this matter may be determined at this stage because by approaching the appellate authority, determination of the question would be delayed and the petitioner would be put to irreparable loss. 7.. He further submitted that Jet mats produced by petitioner No. 1 cannot be considered to be mosquito repellents because their purpose is to destroy or kill the mosquitoes and not to repel them. According to him, the sales tax authorities have confused themselves by considering that insecticides are to be used only for protecting the crops against the insects in the farms. He also contended that the said stand taken by the authorities is inconsistent with their stand prior to August 1, 1990, when Jet mats admittedly were considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act S.No. Class of sales or purchases Exemption whether of whole or part of tax Conditions 98 Sales or purchase of pesticides and insecticides. To the extent to which the amount of sales tax exceeds two paise in the rupee. Nil Stands repealed from April 1, 1992). 11. Entry 129 for mosquito repellent is added with effect from August 1, 1990. It is admitted that, up to March 31, 1992, there was no specific entry in Schedule II, Part A with regard to pesticides and insecticides. From 1st April, 1992, pesticides and insecticides are covered by entry 136. There is also variation in the rates of sales tax in entries 129 and 136. It is also an admitted fact that, entry 98 of the notification under section 49(2) of the Act is also repealed with effect from April 1, 1992. 12. With this background, now, we would deal with the contention of the learned advocate for the petitioners that entry 129 of Schedule II, Part A of the Sales Tax Act is ultra vires the Constitution, as it is violative of article 14 because it discriminates between insecticides and mosquito repellents, which are manufactured out of insecticides. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insecticides connote substances used for protecting crops against insects in farms, i.e., in large open areas. It is also pointed out that, mosquito repellents are meant for use in a small compact area. It is, therefore, submitted that entry 129 is based on intelligible criteria having a real nexus to the object sought to be achieved and is not violative of article 14 of the Constitution. 15.. Apart from the aforesaid submission, in our view, applying the test of common parlance, it is apparent that mosquito repellents would normally not be considered by its buyers as insecticides because they are produced and purchased for a specific purpose of repelling mosquitoes. The product mosquito repellent mat , may be produced by using some insecticide, but after its production as a mat, a different commodity known as mosquito repellent mat comes into existence. As stated above, in the case of Arya Vaidya Pharmacy [1989] 73 STC 346, the Supreme Court specifically held that, it is open to the Legislature or the State Government, if it is authorised in that behalf by the Legislature, to select different rates of tax for different commodities. Once it is held that mosquito repellent ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic entry in the Schedule, residuary entry would not be applicable. The residuary entry 13 itself provides that it would apply only to the goods other than those specified, from time to time, in Schedules I and II and in the substantial entries of Schedule III. Therefore, only entry 129, which deals with a specific item known as mosquito repellents would cover a produce which is known as mosquito repellents mat . It was contended that, in view of entry 98 of the notification issued under section 49(2) of the Gujarat Sales Tax Act, which gives partial exemption to the sale or purchase of pesticides and insecticides, and, as the mat is produced by using insecticides, petitioners are entitled to have benefit of entry 98. This, in our view, is a far-fetched submission. When there is a specific entry dealing with a specific item, that entry covers the said item and not an entry which deals with the general items. 19.. Now, we will deal with the alternative submission of Mr. Pathak, learned advocate for the petitioners, that the impugned order passed by the Sales Tax Officer is illegal. In our view, against the impugned order, it was open to the petitioners to file appeal. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioner that mat is prepared not only out of allethrin but it is manufactured out of filter paper and only 4 per cent insecticide. Filter paper is mechanically cut into tablets of specified size and, thereafter, liquid insecticide is poured. After pouring liquid again, it is mechanically sealed. Therefore, the commodity is altogether a different commodity manufactured out of filter paper and the insecticide. 22.. While dealing with the question whether the Legislature can split pulses from the unsplit or unprocessed pulses and treat the two as separate and independent goods, the Supreme Court in the case of Hira Lal Rattan Lal v. Sales Tax Officer [1973] 31 STC 178, observed that it is open to the Legislature to define the nature of the goods, the sale or purchase of which should be brought to tax; Legislature was not incompetent to separate the processed or split pulses from the unsplit or unprocessed pulses and treat the two as separate and independent goods and negatived the contention of violation of article 14 of the Constitution. The relevant observations are as under: Legislature was not incompetent to separate the processed or split pulses from the unspl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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