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TMI Blog2019 (2) TMI 1882X X X X Extracts X X X X X X X X Extracts X X X X ..... n i.e. Harpic and Mortein Coil will be classifiable under Schedule-V of UP VAT Act so as to justify the higher rate of tax, at the rate of 12 % - the goods in question i.e. Harpic and Mortein are squarely covered under Entry 20, Part-A of Schedule-II of UPVAT Act. Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and accordingly, imposed tax at the rate of 4% - 5 % and same was deposited by the petitioner. 8. Learned counsel for the petitioner submits that the active ingredient of Harpic is Hydrochloric Acid, which is a well-known disinfectant and in addition, it has other ingredients like Bis/2 Hydroxyethyl Oleylamine, Alkyl Trimethyl Ammonium Chloride, Butylated Hydroxy Toluene, Methyl Salicylte and other chemicals, used for disinfecting, the surface on which it is applied. Harpic is effective in killing various Micro-organisms (germs/ bacteria) like S. aurus, E.coli, S. flexnari, S. faecalis, K. pneumoniae, and C. albicans, which are generally found in toilet bowls that cause Skin, soft tissue and mucous membrane infections, Gastroenteritis, Inflammation of colon, bacillary dysentery, Diarrhoea; etc. Hence, it is apparent that the function of Harpic is disinfectant and it has additional function of completely removing tough stains from the surface on which it is applied. Hence, it is recommended for disinfecting (primary function) and cleaning toilets (additional function) and other porcelain surfaces. 9. He further submitted that Government recognizes Harpic as disinfectants. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Ponds India Ltd., the Hon'ble Supreme Court laid stress on the fact that reports of experts certify the nature of the products in question, which ought to be taken as sufficient evidence in support of classification. Relevant paragraphs of the Judgment in Ponds India Ltd Vs. Commissioner Trade Tax, Lucknow, 2008 (8) SCC 369 is extracted below for ease of convenience:- "72. Furthermore, an expert in the field has also given his opinion in favour of the appellant. This Court in Quinn India Ltd. v. CCE classified a product relying, inter alia, on the report of the clerical (sic chemical) examiner as under: (SCC p. 563, para 7). "7. .. The Tribunal has completely ignored the report of the Chemical Examiner dated 6101981 and the final opinion of the Chief Chemist dated 241992 coupled with the classification issued by the Department regarding use of wetting agents in the textile industries falling under Sub Heading 3402.90. Test reports of the Chemical Examiner and Chief Chemist of the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. The Revenue has not made any attempt to discredit or to rebut the genuineness a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsecticides/pesticides. In paragraph 8, the Supreme Court held that disinfectants are in the nature of pesticides. It was held by the Supreme Court that a disinfectant which, therefore, is used for killing may broadly be covered in the word "pesticide". Disinfectants may be of two types; one to disinfect and other to destroy the germs, the former, i.e., those products which are used as disinfectant for instance lavender, etc., may not be covered in the expression "pesticide". But those products which are used for killing insects by use of substances such as high boiling tar acid have the same characteristic as "pesticide". 17. Learned counsel for the petitioner further submits that the Harpic sold by the petitioner is squarely covered by the judgement of the Bombay Chemicals (supra), which is disinfectant and has very high capability to kill bacteria and germs (99.999999%) as is clear from the Test Reports. 18. Mortein is an insecticide and the primary/active ingredient of Mortein is the insecticide d-trans allethrin. This Court on a consideration of the various judgements of the Hon'ble Supreme Court as well as the High Courts has held that Mosq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;insecticides' and under the provisions of the Incecticides Act, 1968 a certificate has been issued by Government of India, Ministry of Agriculture which leave no scope of doubt that allethrin which is used in the product sold by the petitioners is 'insecticide'. Insecticides Rules, 1971 provides for the manner of labelling. Labelling/packing of the products of the petitioner is as per the afore-quoted Rule 19(4) of the Rules. 25. D-Trans 'allethrin' and 'pallethrin' are used in manufacturing the goods which have been described as household 'insecticides' on their products as per the statutory requirement under Insecticides Act. In the absence of any specific entry relating to Mosquito Repellent/Mosquito Destroyer and at the same time there being an entry mentioning 'insecticides', it can reasonably be said that an ordinary person will ordinarily understand the product of the petitioners falling under category of the insecticides. 26. These facts coupled with the Principles enunciated in the decisions referred to above leave us in no doubt that the products sold by the petitioners are basically in the categories of 'insecticide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itt Benckiser (India) Ltd. Vs. State of Andra Pradesh, The Guwahati High Court in W.P. (C) No. 1377 of 2010 (Reckitt Benckiser India Pvt. Ltd. Vs. State of Assam, High Court of Rajasthan Bench at Jaipur in S.B. Sales Tax Revision/ Reference No. 11 of 2012 (Reckitt Benckiser (India) Ltd. Vs. Assistant Commercial Taxes Officer Anti Evasion and others and judgment of Supreme Court in Special Leave to Appeal (C) No. 18473 of 2014 (State of A.P. Vs. Reckitt. Benckiser India Ltd.) and M/s Bombay Chemicals Pvt. Ltd. Vs. Collector of Central Excise, 1995 (2) Supp. SCC 646. 21. The counsel for the petitioner has further relied upon the judgment and order of this Court passed in Sales/Trade Tax Revision No. 91 of 2014, (The Commissioner Commercial Tax Vs. M/s Reckitt Benckiser (India) Ltd., wherein this Hon'ble Court after referring the various judgements of Supreme Court and High Court have come to the conclusion that goods in question is covered under Schedule-II, Part A under Entry 20 of UPVAT Act. 22. Learned counsel for the petitioner further submits that in the case of M/s Reckitt Benckiser (India) Ltd., itself on whose behalf the petitioner is selling the goods in the State of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the submissions, he submits that the writ petition is not at all maintainable and is liable to be dismissed. 27. The Court has perused the record and heard learned counsels for the parties. 28. For proper consideration of the matter relevant entries of Schedule II, Part A Entry 20 and Schedule V of UPVAT Act, are quoted below :- Entry 20 of Part -A of Schedule II to the UPVAT Act reads as under: "Chemical fertilizers, except those which are described in entry No. 26 of the Schedule-I; micro-nutrients and also plant growth promoters and regulators, herbicides, rodenticides, insecticides, weedicide and pesticides." Schedule V to the UPVAT Act reads as under: 1. All goods except goods mentioned or decsribed in Schedule-I, Schedule-II, Schedule-III and Schedule-V of this Act. 29. Schedule-II, Part A, Entry 20 of UPVAT Act provides levy of 4%-5% tax on the sale of goods mentioned therein which includes all all kind of insecticides and pesticides. Schedule-V provides levy of tax at the rate of 12% on those goods which are not mentioned in any of the Schedule-I,II, III, IV. 30. The High Court of Andhra Pradesh in Tax Revision No. 10 of 2007 (M/s Reckitt Benckiser (Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arpic Lizol are manufactured under drug licence issued in Form-25 issued under Rule 70 of the Drug Rules, they do not fall under entry 88 and, therefore, the question of these goods coming within the excluded category under entry 88(b) does not arise. Both the goods in question, therefore, are exigible to tax at 4% but not at 12.5%. 31. Guwahati High Court in the case of W.P. (C) No. 1377 of 2010 (Reckitt Benckiser (India) Pvt. Ltd. Vs. State of Assam held the following observations: 1. By this batch of writ petitions, W.P. (C) No. 1377 of 2010, W.P. (C) No. 1378 of 2010, W.P. (C) No. 1379 of 2010 and W.P. (C) No. 1377 of 2010, the petitioner company, registered under the Companies Act and engaged in manufacturing, sale and marketing of various household products including insecticides such as Mortein mosquito coils, mats, vaporizers and disinfectants like "Harpic" and "Lizol" dispirit and Dettol antiseptic liquid, cherry blossom shoe polish, etc., has challenged the assessment of the respondents authorities of the products of Harpic, Lizol and Dettol at the higher rate of these products at 12.5 per cent VAT charges classifying under the residual items under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of colon, bacillary dysentery, diarrhoea, etc. Before respondent No. 3, the petitioner had also furnished supporting documents/certification from experts, viz., SGS India Private Limited which is an affiliate of Societe Generale de Survellience S. A V Geneva, the world's independent international testing, verification and certification organisation, which hold accreditation from National Accreditation Board for Testing and Calibration Laboratories, Ministry of Science and Technology, New Delhi and is approved, among others, by the Bureau of Indian Standards, New Delhi and the Ministry of Environment and Forests, Government of India (under Environment Protection Act, 1986), New Delhi, to substantiate the contention that Harpic is a disinfectant. 23. The aforesaid contention of the petitioner that Harpic is a disinfectant was not doubted or contradicted by the Revenue. Similarly, the primarily disinfectant quality of "Lizol", supported by expert opinion also remained unrebutted. 24 . The petitioner also contended that similarly, "Lizol" has the active ingredient benzalkonium chloride solution I.P. and other ingredients fragrance-BBA P 2062 M, propylene g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve discussions, we are of the view that these petitions should be allowed and the products Harpic and Lizol having been declared to be pesticides as discussed above, would be liable to tax under entry No. 19 of Part A of the Second Schedule to the Assam VAT Act and Dettol would be liable to be assessed as an item under entry 21 of the Fourth Schedule to the Assam VAT Act and will not fall within the excluded category under the Explanation. 32. In S.B. Sales Tax Revision/ Reference No. 11 of 2012 (Reckitt Benckiser (India) Ltd. Vs. Assistant Commercial Taxes Officer Anti Evasion and others, the High Court of Rajasthan has held as follows:- 3 . The brief facts noticed are that a survey came to be conducted at the business premises of the assessee on 03.05.2007 by the Anti Evasion Wing of the revenue wherein, it was noticed that the assessee is manufacturing/producing Anti- Mosquitoes devices and "repellents", "Dettol Soap", "Brasso", "Harpic Toilet Cleaner", "Lizol Floor Cleaner", "Manson Polish", "Robin Blue", "Ret Kill", "Teenapole", Drugs & Medicines etc. and during the course of survey an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be appropriate to refer the judgment in the case of Ponds India Limited (supra) where insofar as test/Laboratory report is concerned, it has been held as under:- "72. Furthermore, an expert in the field has also given his opinion in favour of the appellant. This Court in Quinn India v. CCE classified a product relying, inter alia, on the report of the clerical (sic chemical) examiner as under: "7. ...The Tribunal has completely ignored the report of the ChemicalExaminer dated 06101992 coupled with the classification issued by the Department regarding use of wetting agents in the textile industries falling under SubHeading 3402.90. Test reports of the Chemical Examiner and Chief Chemist of the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. The Revenue has not made any attempt to discredit or to rebut the genuineness and correctness of the reports of the Government, Chemical Examiner and Chief Chemist. Thus, the reports are to be accepted along with other documentary evidence in the form of classification issued by the Department regarding use of wetting agents in the textile industries to hold that the product Pene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, and would not destroy or discolour materials on which it is used". It thus cannot be disputed that a disinfectant is also a killing agent. Even the Tribunal found that the goods produced by the appellant which contained high boiling tar acid kill the bacteria in the gutters and the bathrooms. In the Report of the Deputy Chief Chemist it was mentioned that all above products numbering 14 were formulations containing high boiling tar acid as the principal active ingredient. It then noticed the definition of pesticide and disinfectant and observed that, "it appears from the above definition that disinfectants are used for killing or inactivating microorganisms, in some literature for oils (containing high boiling tar acid) are mentioned in pesticide manual". But he opined that it was not clear whether the formulations containing tar acids, as in the case of the goods produced by the appellant which were used as disinfectants, will be covered broadly by term 'pesticides'. 6. 'Pesticide' has been defined in Butterworths Medical Dictionary, 2nd Edn., as "a comprehensive word to include substances that will kill any form of pests, e.g., in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny category or not, it has to be examined if it satisfies the characteristic which go to make it a goods of that category. And whether in trade circle it is understood as such and if it is a goods of technical nature then whether technically it falls in the one or the other category. Once it is found that a particular goods satisfies the test then the issue which arises for consideration is whether it should be construed broadly or narrowly. One of the settled principles of construction of an exemption notification is that it should be construed strictly, but once a goods is found to satisfy the test by which it falls in the exemption notification then it cannot be excluded from it by resorting to applying or construing such notification narrowly. Item 18 is an exemption notification. As stated earlier, it mentions broad categories of goods which are entitled to exemption. Once a goods is found to fall even narrowly in any of these categories, there appears no justification to exclude it. The test of strict construction of exemption notification applies at the entry, that is, whether a particular goods is capable of falling in one or the other category but once it falls then the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s including tooth paste, tooth powder, cosmetics, toilet articles and soaps." (emphasis added)" 25. Taking into consideration the entry existing under the R.V.A.T. Act, the characteristic and phraseology is almost identical to the Assam VAT Act, the High Court after detailed reasoning observed in para Nos. 38, 39 & 41 of the judgment of the Gauhati High Court (supra) which reads ad-infra:- "38. In respect of the aforesaid products, as discussed above, the disinfectants qualities of the Harpic and Lizol and the prophylactic qualities of Dettol have not been denied by the revenue authorities. The only stand taken by the revenue authorities is that these were not dominant nature of the products. However, it cannot be denied that these disinfectant and the prophylactic qualities of the aforesaid products are not insignificant, rather because of the aforesaid disinfectant and prophylactic qualities, the aforesaid products are used. It is now well settled principle of law that when two views are possible, the one which favours assessee should be adopted. In Mauri Yeast India Private Limited v. State of Uttar Pradesh, MANU/SC/7514/2008 : (2008) 5 SCC 680.: "46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on a different footing. 36. It is not for the Court to determine for itself under Article 136 of the Constitution under which item a particular article falls. It is best left to the authorities entrusted with the subject. But where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this Court will be loath to say that it will not interfere." ….. 41 . In the light of the above discussions, we are of the view that these petitions should be allowed and the products Harpic and Lizol having been declared to be pesticides as discussed above, would be liable to tax under Entry No. 19 of the Part A of the Second Schedule of the Assam VAT Act and Dettol would be liable to be assessed as an item under Entry 21 of the Fourth Schedule of the Assam VAT Act and will not fall within the excluded category under the Explanation." 26 . The Apex Court in the case of Ambey Laboratories v. Collector (supra) was considering the case of "Liquid Phenyle" an identical product and, held in a case of Central Excise Tariff Act, 1985 that "Liquid Phenyle" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue on a judgment of Kerala High Court in assesses own case (supra) is misplaced as the Apex Court reversed and remanded the matter back to Kerala High Court to re-decide and counsel for the respondent was unable to bring on record the subsequent judgment of Kerala High Court. 33. In addition to above, as discussed above, in judgments given by various High Courts, i.e., High Court of Andhra Pradesh, Guwahati and Rajasthan, on the case filed by the manufacturer of Harpic and Mortein, i.e., M/s Reckitt Benckiser (India) Pvt. Ltd., after considering the relevant entries and provisions of the respective States, have held that Harpic and Mortein Coil, manufactured and sold, are to be classified under the heading "Insecticides/ Pesticides" and "Disinfectant", and are subject to tax at the rate of 4% to 5% and therefore, the Revenue's contention that the item sold by the petitioner should be taxed as residue entry at the rate of 12.5% to 13.5% has been rejected. 34. The Apex Court has dismissed the Special Appeal filed by the State of Andhra Pradesh against the judgement & order passed by the Andhra Pradesh High Court in S.L.P. No. 18473 of 2014 (State of A.P. Vs. M/s Reckitt Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icides" and accordingly, a tax was charged from it and on the subsequent sales, the petitioner has charged tax as "pesticides" and has deposited the same along with its monthly returns, which has rightly been accepted by the assessing authority while framing the original assessment orders. 41. This Court in T.T.R. No. 91 of 2014 (supra) has decided the issue vide judgement & order dated 09.10.2018. The relevant paragraphs of the said judgment are quoted below:- "The brief facts of the case are that the Assessee-Opposite Party-Dealer is carrying on a business of manufacture, purchase and sale of Lizol / Harpic. For the assessment year in question, the Assessee-Opposite Party has charged and deposited the tax on the sale of Harpic and Lizol treating the same are covered under Schedule-II, Part-A, Entry No. 20 of VAT Act at the rate 4% - 5%. ….... Per contra, learned counsel for the Assessee-Opposite Party has placed reliance of the judgments of the Apex Court as well as of the High Courts. Learned counsel for the assessee-Opposite Party has placed reliance of a judgment reported in (1995) Suppl. 2 SCC 646 in the case of the Bombay Chemicals Pvt. Ltd. v. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, insecticide, weedicide and pesticides." The Respondent classified Harpic and Lizol under Entry 20 of Part II of Schedule II to the UPVAT Act, based on the following principles: (a) Classification adopted under UP Trade Tax Act as wellas other Sales Tax Act, CST and Central Excise; (b) supported by a large number of Judgments includingJudgment of Hon'ble Supreme Court in Bombay Chemicals (supra); (c) Test Reports of Indian Institute of Chemical Technology,Hyderabad certifying Harpic & Lizol as disinfectants; hence a pesticide/ insecticide, which are relevant as held by the Hon'ble Supreme Court in Ponds); (d) definition under the relevant statute Section 3 (b) ofthe Drugs and Cosmetics Act (definition of drugs) read with Rule 126 of the Drugs & Cosmetics Rules; (e) Licenses issued for Harpic and Lizol by the Drug Controller, Government of India treating them as a disinfectant; (f) HSN Classification; (g) Technical and Dictionary meaning; and (h) common/commercial parlance etc. (taken note of by theHon'ble Supreme Court in Bombay Chemicals and by various High Courts (in paras 26 and 27 below). These principles have been recognized by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r etc. Hence, it is apparent that the primary function of Harpic and Lizol is to act as disinfectant and to kill germs, bacteria and microorganisms and it has additional function of completely removing tough stains from the surface on which it is applied. He has further submitted that Government recognizes Harpic and Lizol as disinfectants. Harpic and Lizol being disinfectants are considered as a ''drug' under Section 3(b) of the Drugs and Cosmetics Act, 1940 read with Rule 126 of the Drugs & Cosmetics Rules. Section 3 (b) (ii) of D&C Act defines drug to include such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette. In terms of Section 3 (b) (ii) of the D&C Act, Government of India is required to notify such goods and Government of India by its Notification No. S.O. 1335 dated 02.06.1961 read with Notification No. X. 11013/2/72-D dated 09.07.1975 has notified "Disinfectant fluids from synthetic or na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries falling under SubHeading 3402.90. Test reports of the Chemical Examiner and Chief Chemist of the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. The Revenue has not made any attempt to discredit or to rebut the genuineness and correctness of the report of the Government, Chemical Examiner and Chief Chemist. Thus, the reports are to be accepted along with other documentary evidence in the form of classification issued by the Department regarding use of wetting agents in the textile industries to hold that the product Penetrator 4893 possessed surface active properties and, therefore, is covered by Exemption Notification No. 101/66 dated 1761966 as amended from time to time." 73. In this case also, the report of the chemical examiner is in favour of the assessee. Furthermore, in a case of this nature, where the Revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative." In support the learned counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of tax entries worldwide are based on Harmonized System of Nomenclature, Brussels and even India has adopted the same for Customs and Central Excise Entries. The Sales Tax/VAT Entries are based on Customs/Central Excise Entries. Therefore, the HSN Entries and Explanatory Notes have relevance for understanding entries under Sales Tax/ VAT Acts. As per the HSN Explanatory Notes 2002, based on which Central Excise & Customs Entries are made in India. HSN Explanatory Notes 2002 provides as: "Disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria viruses or other microorganisms generally on inanimate objects. Disinfectants are used for example in hospitals for cleaning walls etc. or sterilizing instruments. They are also used in agriculture for disinfecting seeds. The group includes sanitisers bacteriostats and sterilisers." Further, even as per the HSN Explanatory Notes it is provided that "Disinfectants are used in hospitals for cleaning walls". Thus, such disinfectants may also be used for cleaning and merely because they are also used for cleaning, it cannot be said that it is not a disinfectant. Common parlance evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will, however, stand on a different footing. Further, the Supreme Court held that the Department-Revenue cannot resort to arbitrary classification and in this regard it observed that where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, the Court will be loath to say that it will not interfere. Re: Burden to prove classification in a particular entry is always on the Revenue: The burden to prove that a particular item falls under a specific entry is on the Revenue and not the assesse. The Hon'ble Supreme Court in Union of India Vs. Garware Nylons Ltd. 91996 (10) SCC 413); HPL Chemicals Vs. Commissioner of Central Excise) 2006 (5) SCC 208) and Voltas Ltd. Vs. State of Gujarat (2015 (7) SCC 527) has held that the burden of proof is on the taxing aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / dealer is based on classification adopted under Uttar Pradesh Trade Tax Act as well as other Sales Tax Act, CST and Excise, supported by a large number of Judgments, test reports from Central Government laboratories certifying Harpic and Lizol as a disinfectant; hence a pesticide/insecticide (as held by the Supreme Court in Bombay Chemicals vs. Collector of Central Excise (1995) Supp 2 SCC 646), definition under Drugs and Cosmetics Act & Rules in respect of Harpic and Lizol, licenses obtained from the Drug Controller, Government of India (treating them as a disinfectant) for Harpic and Lizol, HSN Classification, technical and dictionary meaning, common/commercial parlance, etc. The Counsel appeared before the High Court contended that Harpic and Lizol are manufactured under license under the Drugs Act. The Special Counsel nextly submits that Harpic and Lizol are manufactured under licence under the Drugs Act; and they are therefore drugs falling under entry 88 but being toilet preparations stand excluded therefrom. A careful reading of entry 88(b) would show that Harpic and Lizol would be "odd men out" among the goods mentioned in the entry. The said entry speaks of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. Further all substances intended for use as components of a drug and such devices intended for internal or external use among others, in the "mitigation or prevention of disease" would be drugs. When a manufacturer produces any disinfectant fluids, they are basically intended for prevention of disease by destroying and/or controlling bacteria and microorganisms that are unusually present. That may be one reason why even under the Drugs and Cosmetics Rules, 1945 (the Drugs Rules) the disinfectants are placed in Schedule-K in respect of which they were exempted from the provisions of Chapter IV and the Rules made thereunder. Harpic and Lizol are the products/goods sold even in general stores and on the counters of departmental stores. We therefore reject the submission of the State that Harpic and Lizol fall under entry 88 merely because they are manufactured under drug licence. In view of the aforesaid, the High Court reached at a conclusion and held that Harpic and Lizol are disinfectants capable of destroying germs and microorganisms like Escheriachia coli, Staphylocococcus aureus, Enterococcus hirae, Pseudomonas aeruginosa and Candida albicans etc. Being disinfect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan High Court dated 7.4.2017. The following order has been passed by the Supreme Court by dismissing the SLP, which is quoted herein below :- "Heard the learned counsel for the petitioners and perused the relevant material. Application for exemption from filing official translation is allowed. Special Leave Petition (c) No.3876 of 2017 arising out of the same impugned judgment has been dismissed by order of this Court dated 02.02.2018. Consequently, the present special leave petitions are also dismissed." In view of the aforesaid decisions of Apex Court and the High Courts the issue, which is involved in the instant revision is decided in favour of the Assessee by all the High Courts and Supreme Court. Respectfully following the said decisions, the revision petition filed by the department is dismissed as no question of law is involved and it is hereby held that Harpic and Lizol are covered under Schedule-II, Part A, Entry No.20 of UP VAT Act as such the same are classified items. I find no error in the impugned judgment and order of the Tribunal. The Revision Petition is, accordingly, dismissed." 42. Keeping in mind the principles of law laid down by Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s character, the same would not warrant initiation of proceedings under the above section. If, however, the grounds are relavant and have a nexus with the formation of belief regarding escaped assessment, the assessing authority would be clothed with jurisdiction to take action under the section. Whether the ground are adequate or not is not a matter which would be gone into by the High Court or the Supreme Court, for the sufficiency of the grounds which induced the assessing authority to act is not a justiciable issue. What can be challenged is the existence of the belief but not the sufficiency or reasons for the belief. At the same time, the belief must be held in good faith and should not be a mere pretence." Applying the above principle, this court, in the case of Rathi Industries Limited Vs. State of U.P. and another has further elaborated- From a perusal of the aforesaid, it is apparently clear that the words "reason to believe" in Section 21 of the U.P. Trade Tax Act conveys that there must be some rational basis for the assessing authority to form a belief that the whole or any party of the turnover of a dealer has for any reasons escaped assessment. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once the authority has jurisdiction in the matter on existence of "jurisdictional fact", it can decide the "fact in issue" or "adjudicatory fact". A wrong decision on "fact in issue" or on "adjudicatory fact" would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present." Thus we accept the contention of the petitioner that in this case, in the state of the reason to believe as contained in the proposal made by the petitioner's assessing authority, the jurisdictional fact of applicability of Rule 9 (3) of the Rules is not established He further submits that even the discovery of inadvertent mistake or non-application of mind during the assessment would not be justifiable ground for re-initiating proceeding under Section 29 (7) of the Act. 45. The respondent's counsel has argued that the original assessment order was passed without application of mind and relied upon paragraph no. 31 of the counter affidavit and has made the following averments:- ".......... The assessing authority while passing original assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the law for reassessment." 9. In the present case, entire material which is now being taken into consideration for the purpose of impugned notice and approval granted was available before Assessing Authority and after having considered the same, assessment was made. Now authorities, taking a different view, have issued impugned notice. Thus, it is a clear case of change of opinion, hence reassessment is not permissible in view of aforesaid exposition of law." 48. This Hon'ble Court, time and again has taken the view that in absence of no new material brought on record, the completed assessment cannot be re-opened merely on the basis of change of opinion. 49. In addition to above as discussed above, there is no new material on record to be put forward by the respondents that the goods in question i.e. Harpic and Mortein Coil will be classifiable under Schedule-V of UP VAT Act so as to justify the higher rate of tax, at the rate of 12 %. On the contrary keeping in mind of the principles laid down by Supreme Court, the other High Courts as well as this Court, the goods in question i.e. Harpic and Mortein are squarely covered under Entry 20, Part-A of Schedule-II of UPV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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