9911796707
TMI Blog2015 (12) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... nt protection and therefore the same was covered by Entry 27 of the Third Schedule to the Delhi Sales Tax Act, 1975 - Tribunal was right in concluding that the product of the respondent assessees was covered under Entry 38B of Schedule B of the HVAT Act. The substantial questions of law are answered against the State. There is delay in filing the appeals ranging from 442 to 756 days. No satisfactory explanation has been given for the same. With regard to delay in filing the appeal, in Amalendu Kumar Bera's case (2015 (9) TMI 117 - SUPREME COURT), the Apex Court held that merely because the respondent is the State, delay in filing the appeal or revision could not be and shall not be mechanically considered and in the absence of sufficient cause delay shall not be condoned. - Decided against Revenue. - VATAP No.93 of 2014 (O&M) - - - Dated:- 7-9-2015 - MR. AJAY KUMAR MITTAL AND MR. RAMENDRA JAIN For The Appellant : Ms. Mamta Singla Talwar, DAG, Haryana with Mr.Saurabh Mago, AAG, Haryana. For The Respondent : Mr. A.K.Sachdeva, Advocate, Mr. Arun Nehra, Advocate Ajay Kumar Mittal,J. 1. This order shall dispose of a bunch of 11 appeals viz. VAT Nos.93 of 2014, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pesticides, weedicides and insecticides are not exempt generally from payment of VAT under the HVAT Act and these are exempt when used for plants only. This means that a pesticide or insecticide or weedicide to qualify for exemption from payment of VAT under entry 38B must be in a marketable state directly to be used for plants only and not otherwise like intermediate goods which are used in formulation of such final products. Though the said items may be covered under the 1968 Act, yet the same cannot be said to be covered under Entry 38B of Schedule B of the Act as the said entry is conditional one i.e. used for plants only . Accordingly, a detailed order on clarification sought by the assessee was passed by the Principal Secretary, Government of Haryana, Excise and Taxation Department under Section 56(3) of the Act on 16.7.2012, Annexure A.1. Aggrieved by the order, the assessee filed appeal before the Tribunal. The Tribunal vide order dated 23.1.2013, Annexure A.2 allowed the appeal holding that the goods in question being insecticides, weedicides and pesticides are technical grades in concentrated form and after dilution by adding inerts and emulsifying agents etc. are used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the products used by the assessee are pesticides, weedicides and insecticides. Further, they are technical grades in concentrated form and after dilution, these products remain insecticides/pesticides or weedicides and are used for plants after mixing inerts and other such agents to make them fit for use on the plants. It was further recorded by the Tribunal in its order dated 17.1.2013 as under:- It follows from the language of the entry that an item to qualify for exemption under this entry as to be pesticides or weedicides or insecticides and further it must be used for plants only. The entry can be divided into two parts (i) that the product has to be pesticides, weedicides or insecticides and (ii) the same is used for plants only. It has been held in the impugned order the pesticides, weedicides and insecticides are not generally exempted from the payment of tax and the same will be exempted only if used for plants. The impugned order nowhere states that the produces in question are not pesticides, weedicides or insecticides. It only says that these products are not final products in the marketable state and being intermediate goods, the same are not used for plants by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reveals that each and every product in question is used for the control of various diseases in various crops. The learned counsel for the appellant has amply demonstrated the use of the goods in question for various crops by the help of Annexures A.1 to A.8 placed on the file. Likewise, the applications made for the registration of the products under the Insecticides Act from B1 to B7 placed on the file also reveals that the products in question are used for plants. Thus there is ample documentary evidence to prove that the products in question are used for plants only. There is no rebuttal of these facts from the respondent side. 14. A similar question arose before the Hon'ble Madras High Court in the case of Union of India and another vs. Southern Distributors (supra) with regard to the BHC (Technical) Pesticide whether it is directly used on crops or not it was contended by the department that BHC (Technical) is sold by the assessee as a raw material for making the pesticide and the BHC (Technical) itself cannot be used as the pesticide for crops to claim exemption under notification. This argument was not accepted by the Hon'ble court. Likewise, in the case of Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in the whole of the Union Territory of Pondicherry. It is not the case of the Revenue that the commodity in question will not answer the description of pesticide , but the contention is that for the agricultural use, the rigour or power of the product should be reduced by mixing it with other material. So long as notification itself does not prescribe the pesticide of any percentage or power it is to be exempt. There is no scope for reading into the notification in question of any such limitation, as contended by the learned counsel for the Revenue. The Tribunal has chosen to place reliance on the certificates of the competent authorities concerned and other materials and has come to the conclusion that the product sold by the petitioner satisfied the requirements of the term pesticide and comes under the notification issued under section 19 of the Pondicherry General Sales Tax Act, 1967. We are in agreement with the finding of the Tribunal in this regard and we do not see any reason to differ from the finding of the Tribunal, which the Tribunal has arrived at, after considering various and other materials and has given a finding on fact. So, the question is whether the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude disinfectants which are preparations for general disinfection purposes and which are used in the bathrooms, gutters, floor cleaning, etc. The Tribunal considered various text books and literature produced by the appellant and the Department and observed that various authors have explained the terms used in the notification and the 'disinfectant' in different senses, some giving wider meaning to it and others narrower, therefore, it was not possible to draw any conclusion as to exact demarcation between various terms. The Tribunal held that it would be unsafe to classify any product as covered in the notification merely because it has the property to kill without reference to its normal use. It then found that some of the disinfectants produced by the appellant are referred to as 'deodorant fluid'. Others contain perfumery materials, i.e., Bioflor Lavender Type and Bioflor Jasmine Type. The Tribunal held that the substances used for killing insects, pests, etc. are by their nature noxious and one is used to their having an unpleasant or irritating smell. On the other hand, the disinfectants are used either to neutralise existing unpleasant smell or even to add a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sually on the basis of what pests they are used to destroy or eliminate, Under the US Federal Environment Pesticide Control Act, the term 'Pesticide' has, been defined to include '(1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, insect, roderit, nematode, fungus, weed, other forms of terrestrial or aquatic plants or other forms of animal life e.g., viruses, bacteria, or other microorganisms, which the administrator declares to be a pest and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant' [Pesticides in the Indian Environment, by P.K. Gupta p.2]. 7.'Fungicide' inhibits growth or destroys fungi pathogenic to man or other animals or inanimate surfaces. The appellant had imported tar acid to manufacture insecticide pesticide and fungicide. The Director General had permitted import for this purpose. In the letter written by the appellant claiming exemption, it was stated that disinfectant fluids manufactured by it were capable of being used for the purpose of destroying fungi of medical importance. 8.A disinfectant which, therefore, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above, the Tribunal was right in concluding that the product of the respondent assessees was covered under Entry 38B of Schedule B of the HVAT Act. The substantial questions of law are answered against the State. 14. Further, we find that there is delay in filing the appeals ranging from 442 to 756 days. No satisfactory explanation has been given for the same. With regard to delay in filing the appeal, in Amalendu Kumar Bera's case (supra), the Apex Court held that merely because the respondent is the State, delay in filing the appeal or revision could not be and shall not be mechanically considered and in the absence of sufficient cause delay shall not be condoned. It was observed thus:- 10......True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there is serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under Section 47 till the decree holder puts the decree in execution... Accordingly, the appeals are dismissed on merits as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
