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TMI Blog2011 (8) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... elling of 'Boom flower', which is a chemical fertilizer, liable to sales tax under Part-B of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959. 3.The case of the petitioners is that, on 24th January 2005, the petitioners were informed by the Enforcement Wing Officials that their product, 'Boom Floor' is liable to tax at 12% under Residuary entry, being a micro nutrient, and not falling under entry 14 of Part "B". 4.It is submitted by the petitioners, in all the writ petitions, that during the year 2003-04 and 2005-06, the petitioners had effected sale of Boom Floor, by paying tax at 4%, by treating it to be chemical fertilizer, falling under Entry 14 of Part B of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 5.The product of the petitioners was cleared and exported, as chemical fertilizer, under H.S.CODE 3105.90 i.e., entry for fertilizer. 6.The product of the petitioners, is sold to dealers, for fertilizers and pesticides, for use of by the farmers. On being informed by the Enforcement Wing, that the product of the petitioners, was taxable at 12%, under the residuary entry, the petitioners approached the respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff Heading 2904.20 which reads as "Derivatives containing only nitro or only nitro groups". According to case law report in 118 STC 379(SC), Chemical Fertilizers, that is to say (xxix) Urea (other than technical grade urea), (xxx) Urea Ammonium Phosphate, (xxxi) Zinc Sulphate, the expression 'that is to say' is descriptive, enumerative and exhaustive and circumscribes to a greater extent the scope of the entry. Apart from the filler and carrier contents (76.5%), Zinc Sulphate (0.55) and Urea (3%) are negligible and the predominant Nitro benzene (20%) is not falling under the items listed under the category of chemicals fertilizers. If there is a mixture of the sub-items in the Entry with any other foreign substance which is not an organic manure, then it would not fall within the scope of Entry (Entry No.14/Part B/First Schedule) as the mixed product is a commercially different one and is not the same as components as held in Shaw Wallace and Co. vs. State of Tamil Nadu, 37 STC 522(SC). Manure mixture made up of various chemical fertilizers mentioned in the Entry and sold as a different chemical product and for a different user is not chemical fertilizer as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) to (xxxi) above with or without the addition of other articles (on the turnover relating to components thereof which have no already suffered tax). Present Entry 40 of Part D: All other goods not specified elsewhere in any of the schedules. " 10.The contention of the learned Senior counsel for the petitioners is that the impugned clarification goes contrary to entry 14 of the Part-B, as the product of the petitioners is Zinc Sulphate, falling under only (xxxix) and Urea Ammonium Phosphate falling under only (xxxi) along with mixture Nitro benzene and Nitro. 11.The learned Senior counsel appearing on behalf of the petitioners, contends that once the product falls under Entry 14, Part B, it could not be treated to be under residuary entry. Therefore, the impugned clarification, being arbitrary to the provision of the Statute, cannot be sustained. 12.It is also the contention of the learned Senior Counsel for the petitioners that the respondent No.1 wrongly treated the product of the petitioners to be falling under residuary entry, merely because, it contains of Nitro and Nitro benzene added to the Urea and Zinc Sulphate. 13.The contention of the learned Senior counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product for entry under the Sales Tax Act. Whereas, in the said judgments, the issue was not with respect of the ingredients of a particular product, but "whether when a new product formed by mixture of two products, and sold as a different product then would attract tax or would be exempted, under the Tamil Nadu General Sales Tax Act 1959". 15.There is force also in this contention of the learned Senior counsel appearing for the petitioners. The reading of the judgments referred to above, do not show that, the question decided was to consider a product, under the particular entry, in view of its ingredients, but deals with the question as to whether the product, created by mixture of two products can be treated to be same or different. 16.The respondent No.1, was error, in relying on these judgments, to hold that the product of the petitioners will fall under residuary item, only because the contents of Nitro-benzene was higher then of Zinc Sulphate and Urea. 17.The reading of 14-B does not show that any such ratio has been fixed for categorizing a product, under particular entry, therefore, in view of the law laid down by this court in case of Transelektra Domestic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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