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TMI Blog2006 (11) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... orisers, liquid vaporisers, multi-insect killers and disinfectants such as Harpic and Lizol and Dettol antiseptic. From April 1, 2005 to September 30, 2005 the company conceded a total and taxable turnover of Rs. 7,15,06,109 and Rs. 6,85,10,555, respectively. According to the company, it had collected VAT at the rate of four per cent of Rs. 27,40,376 and the same was deposited with the Commercial Tax Department. The company was however served with a notice under section 67, VAT Act, 2003 dated April 25, 2005 stating that on verification of the returns for the months from April, 2005 to September, 2005 it was noticed that the turnover mentioned therein related only to mosquito repellent and related devices and not involving rodenticides/pesticides. It was stated that mosquito repellent and electronic mosquito repellent devices are taxable at 12.5 per cent vide entry 66 of S.R.O. No. 82 of 2006. Further it was also stated that the commodity sold by the company bears HSN Code 8516.79.20. Prior to the publication of the list by Notification S.R.O. No. 82 of 2006 attracting 12.5 per cent tax, mosquito repellents and related devices, warranted levy of VAT at the rate of 12.5 per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable at 12.5 per cent. Similarly, rat kill cake is a rodenticide and, hence, would fall under entry 44(5) of the Third Schedule to the VAT Act, 2003 as amended by KVAT (Amendment) Act, 2005 and taxable at four per cent. Commissioner also clarified that Harpic toilet cleaner and Lizol disinfectant floor cleaner would fall under serial No. 27(4) of S.R.O. No. 82 of 2006 and are taxable at 12.5 per cent. Dettol antiseptic liquid is not prescribed as a medicine for curing disease, but used for cleaning purpose and hence it would not come under entry 36(8) of the Third Schedule to the VAT Act and is taxable at the rate of 12.5 per cent. Aggrieved by the said order the company has come up with these appeals and writ petition. Sri K. U. Vijayan, counsel appearing for the appellant, submitted that the goods sold by the company would clearly fall under section 6(1)(a) of the VAT Act, 2003 and the Government was not authorised under section 6(1)(d) to notify list of goods taxable at 12.5 per cent which do not fall under section 6(1)(a) or 6(1)(c). Counsel submitted that the goods manufactured by the company would fall under clause (5) of serial No. 44 of the Third Schedule which ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , do not fall under clause (5) of serial number 44 of the Third Schedule to the VAT Act. Counsel submitted that serial number 44 generally takes in fertilisers, pesticides, weedicides, insecticides and similar products. When there is a specific entry as serial number 66 which takes in mosquito repellents, electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof, counsel submitted that the appellant's products would fall only in that entry. Learned Government Pleader further submitted that the Government vide S.R.O. No. 82 of 2006 have issued notification in enlisting those items as per section 6 of the VAT Act. That does not mean that mosquito repellent is taxable at 12.5 per cent only from January 21, 2006. Learned Government Pleader submitted that under the Kerala General Sales Tax Act, there had been a specific entry to cover mosquito repellents and therefore such commodity had been known and identified in the market and amongst consumers only as mosquito repellents and tax has been levied on that basis. Further, HSN Code appearing in entry 44(5) was deleted by Finance Act, 2006 to overcome the confusion created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Mineral or chemical fertilizers, potassic 31.04 (d) Mineral or chemical fertilizers containing two or three of the fertilizing elements nitrogen, phosphorus and potassium; other fertilizers 31.05 (3) Gypsum 2520.10.10 (4) Bio-fertilizers, bio-control agents and micro nutrients . . . (5) Pesticides, weedicides, insecticides, fungicides, herbicides, rodenticides, anti-sprounting products and plant growth regulators, and similar products other than micro products. 38080 We may also extract section 6(1)(a) to (d) for easy reference. 6. Levy of tax on sale or purchase of goods. (1) Every dealer whose total turnover for a year is not less than ten lakhs rupees and every importer or casual trader or agent of a non-resident dealer or dealer in jewellery of gold, silver and platinum group metals or silver articles or contractor or any State Government, Central Government or Government of any Union Territory or any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbers, which are developed by the International Customs Organisation as harmonised system of nomenclature (HSN) and adopted by the Customs Tariff Act, 1975. However, there are certain entries in the Schedules for which HSN numbers are not given. Those commodities which are given with HSN number should be given the same meaning as given in the Customs Tariff Act, 1975. Those commodities which are not given HSN number should be interpreted in common parlance or commercial parlance. While interpreting a commodity, if any inconsistency is observed between the meaning of a commodity without HSN number and the meaning of a commodity with HSN number, the commodity should be interpreted by including it in that entry which is having the HSN number. HSN numbers are allotted in the Schedules either in four digits or in six digits or in eight digits. The four-digit numbers indicate the heading in the HSN classification, six-digit numbers indicate the sub-heading and the eight-digit numbers indicate the specific commodity number. Looking at HSN Code 3808.10.91 (eight digits) repellents for insects such as flies, mosquito, we have no hesitation to say that it has direct relation with the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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