9911796707
TMI Blog2005 (10) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner of Commercial Taxes holding that fridge stand is an accessory of refrigerator and the rate applicable to the "fridge stand" is the rate applicable to refrigerator under entry 6 of the Fifth Schedule to the Kerala General Sales Tax Act, 1963. 3.. W.P.C. No. 18130 of 2003 is a writ petition filed challenging the above clarificatory order dated August 2, 2002 and exhibit P2 notice dated April 28, 2003 issued under section 19 of the Act proposing to reopen the assessment and also exhibit P4 assessment order applying the clarificatory order and making fridge stand as an accessory of refrigerator and applying the rate of tax applicable under entry 6 of the Fifth Schedule to the Act. 4.. Petitioners are registered de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Kerala [1996] 102 STC 79, refrigerator stand is an accessory of refrigerator and taxable only at multi-point during the year. Further it is pointed out, in view of the decision the entry refrigerator or components or spare parts will not include its accessory and hence refrigerator stand is only an accessory of refrigerator and not its spare parts or component and is taxable under entry 177 of the First Schedule to the Act taxable at 8 per cent. 5.. Counsel appearing for the petitioner Sri C.K. Thanu Pillai submitted that the respondents have committed an error in not applying the decision of this Court in Marykutty Joseph's case [1996] 102 STC 79. Counsel submitted that in the above case it was specifically held that refrigerator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate applicable is the rate mentioned in entry 6 of the Act. 7. We find it difficult to accept the reasoning given in the clarification issued by the Commissioner. In Marykutty Joseph's case [1996] 102 STC 79, this Court held that fridge stand and T.V. stand are accessories of two items, that is, fridge and T.V. therefore with regard to the assessment year 1989-90 the relevant entries in the Kerala General Sales Tax Act were entries 145 and 157 of the First Schedule to the Act. Entry 6 of the Fifth Schedule however reads as follows: "Refrigerators, water coolers, air-conditioning plants, air coolers, room coolers, machine components and spare parts thereof, taxable at the point of first sale in the State." During the year 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t included in any other entry to the Schedules the said item can be included only in the residuary entry to the First Schedule in serial number 156 till December 31, 1999 taxable at 10 per cent and thereafter under entries to serial number 177 taxable at 8 per cent from January 1, 2000. 8.. Looking at, entry 6 of the Fifth Schedule it is clear that the word "accessory" is omitted. Both the expressions "components" and "spare parts" should have some nexus to the items referred to in the entry. In Mehra Bros. v. Joint Commercial Tax Officer [1991] 80 STC 233 the apex Court held as follows: "An 'accessory' is an object or device that is not essential in itself for the operation of that to which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove mentioned decisions would clearly indicate that "accessory" is not a component, nor "spare part" or any of the items mentioned in entry 6 of the Fifth Schedule. Commissioner is therefore not justified in holding that fridge stand is an "accessory" which falls under serial No. 6 of the Fifth Schedule to the Kerala General Sales Tax Act. 9.. We are therefore inclined to quash exhibit P3 order in O.P. No. 18130 of 2003 passed by the Commissioner of Commercial Taxes and hold that fridge stand will fall only under the general category in the residuary entry in serial number 156 of the First Schedule to the Act. Fresh assessment orders would be passed by the assessing officer concerned in all these cases based ..... X X X X Extracts X X X X X X X X Extracts X X X X
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