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TMI Blog2018 (12) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... above, which do not include either of the goods now arising for our consideration in the appeal; being containers, trays and bowls. The said commodities do not also fall under Entry 174 packing materials and hence necessarily the same has to be taxed under the residuary entry of SRO 82/2006. The impugned order in the above case being a continuation of the proceedings under Section 94, there can be no prospectivity declared for the same. Appeal dismissed - decided against Appellant. - OT. Appeal. No. 2 of 2018 - - - Dated:- 30-8-2018 - MR K. VINOD CHANDRAN AND MRS. MARY JOSEPH, JJ. For The APPELLANT : ADVS. SRI. K. P. ABDUL AZEES, SMT. SHOBA ANNAMMA EAPEN AND SMT. T. ARCHANA For The RESPONDENT : SR GOVT. PLEADER SRI MOHAMMED RAFIQ JUDGMENT Vinod Chandran, J The appeal is against Annexure F order passed under Section 94(7) of the Kerala Value Added Tax Act, 2003 (for short 'the KVAT Act'). The impugned order has interfered with the order of the Clarificatory Authority produced as Annexure E. The appellant is a manufacturer of containers, trays, bowls, cups and other packing materials made of plastic. The appellant had returned the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner notified under the KG ST Act or under the KVAT Act to invoke the suo motu powers conferred under Section 94(7) of the KVAT Act; after its repeal. 4. We will first deal with the preliminary objections, since if we found favour with them, the merits need not be looked into. The order impugned is styled as one passed by the Commissioner of State Taxes under the Department of State Goods and Services Taxes which is only a bonafide mistake, according to us. By the time the Commissioner invoked the power under Section 94(7) of the KVAT Act there was a change in the name of the department itself for reason of the Goods and Services Tax Act having come into force. It is an admitted fact that the very same officer who was notified under the GST Act as Commissioner of State Taxes was the person notified as Commissioner of Commercial Taxes under the KVAT Act. In fact the order has been signed in his capacity as Commissioner, without any reference to the nomenclature by which the taxes department is known. We also notice that under Section 174 of the Act though the KVAT Act has been repealed, it does not under sub-section 2(b) affect the previous operation of the repeale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel. The power exists as found by us, sourced from Section 174 of the K.G S.T Act, 2017 and acquiescence is only in so far as not objecting to the Commissioner of State Taxes, of the new regime, having been shown in the notice as invoking the powers under the old regime. We hence negative the preliminary objection raised by the appellant on the question of jurisdiction. 7. Yet another contention raised by the learned Counsel for the appellant is that the authority under Section 94(2) having exercised powers conferred under the statute, there is no scope for the audit party or the Accountant General to interfere with the same. The Commissioner ought not to have invoked suo motu powers under Section 94(7) on the basis of the alleged irregularities pointed out in the LAR, is the argument. The Commissioner, according to the appellant, was led by the assumptions made in the LAR, which are legally incorrect and cannot at all regulate the invocation of the suo motu powers conferred under Section 94(7). 8. We do not think that the Commissioner was at all influenced by the LAR. However, there is nothing wrong in the Commissioner having invoked the powers on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt found to be specifically excluded by reason of the eight digit HSN numbers shown against such sub-entries, even then the appellant's goods will be covered under sub-entry 8 of Entry 174 which speaks of plastic tins, bags and covers of all sizes and varieties. It is specifically pointed out that there is no HSN Code assigned to such sub-entry. 10. We have to first notice the amendments brought in by the Finance Acts, in the various years, to understand as to which of the items are specifically excluded from the concessional rate of 5% under Entry 174 packing materials and imposed with tax at the higher rate of 20%: By Finance Act 2012, (Annexure A) certain goods were specifically included under a table taxing them at the higher rate of 15%, 20% and 22.5%, which is higher than the rates available in the schedules to the Act. The specific inclusion under Sl.No.3 of the table was Carry bags made of plastic which have a self carrying feature, commonly known as vest type bags or any other feature to carry commodities excluding D punched bags which were levied a tax @ 20%. In the Finance Act, 2013 as is evident from Annexure B, Sl.No.3 was substituted with Carry bags ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in entries in the Schedules, which bear the eight digit numbers but the four digit heading numbers of such commodities are given for some other commodities mentioned elsewhere. In such cases, the four digit heading shall include only those commodities under that heading excluding that commodity for which the eight digit numbers are given. Similar cases are available in the case of six digit numbers also. In such cases the above principle shall apply mutatis mutandis. V. Where the term 'other' is used in sub-entries or sub-sub entries, it should be construed by using the doctrine of ejusdem generis (When specific words are followed by general words, the general words should be interpreted as having the meaning identical to the meaning attributed to the specific words.) 12. Looking at the Customs Tariff Act under heading 3923 the following items are shown: (1) (2) (3) (4) (5) 3923 ARTICLES FOR THE CONVEYANCE OR PACKING OF GOODS OF PLASTICS; STOPPERS, LIDS, CAPS AND OTHER CLOSURES, OF PLASTICS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3923 90 10 Insulated ware kg. 10% 3923 90 20 Aseptic bags kg. 10% -- 3923 90 90 Other kg. 10% -- 13. As against this; in Entry 174 of the Third Schedule-List A of the KVAT Act, the main Heading is not accompanied or aligned with an HSN number. It has also to be observed that the specific goods which are placed before us for consideration being containers, trays and bowls made of plastic are not included either under Sl.No.3 or 3A of the table under Section 6(1) of the KVAT Act. The specific articles dealt with here, ie: containers, trays and bowls as also cups; the latter of which are taxable at rates seen from the Table under Section 6(1)(a) of the KVAT Act can be included only under the eight digit heading: 3923.90.90: Other going by the above extracted Table under the Customs Tariff Act. It is hence relevant that the eight digit HSN Code of 3923.90.90 as found in the Customs Tariff Act is not specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.3 or 3A. We have extracted those goods which come under Sl.No.3 or 3A herein above, which do not include either of the goods now arising for our consideration in the appeal; being containers, trays and bowls. The said commodities do not also fall under Entry 174 packing materials and hence necessarily the same has to be taxed under the residuary entry of SRO 82/2006. 17. The learned Counsel for the appellant then submitted that the impugned order can have only prospective application going by the binding precedent in Sreedhareeyam Ayurvedic Medicines (P) Ltd. Ors. State of Kerala Ors. [(2011) 19 KTR 561 (Ker.) . We are convinced that the said judgment has no application to the above case as the provision exists now. Therein, there was an earlier clarification which was overruled by a later one and retrospectivity given to the later one. It is in such circumstance that the Division Bench of this Court found that the later clarification will not have prospective effect. At that point, the 'authority' under Section 94 was the Commissioner, with no statutory remedy available from the clarificatory order. This provision was amended first specifying the 'authority& ..... 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