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B. Sudershan Reddy, S.H. Kapadia, JJ.
M/S. RECKITT BENCKISER (INDIA) LTD., PETITIONER
Versus
COMMISSIONER, COMMERCIAL TAXES & ORS., RESPONDENT.
Appeal (civil) 3083 of 2008 (Arising out of S.L.P. (C) No. 6096/2007)
Decided On: Decided On : 29-04-2008
Drugs and Cosmetics Act, 1940 - Section 3(b)(ii) - State Government - Customs Tariff- Case court find that High Court in impugned judgment has failed to notice Rules of Interpretation which require that in cases where HSN Code number is indicated against Tariff Item mentioned in Third Schedule then one has to go by provisions of HSN as adopted by Customs Tariff Act - If that is case then one need to interpret Entries in Third Schedule not only in light Entries in the Customs Tariff Act but also judgments applicable to the corresponding Entries in Customs Tariff Act - On other hand is urged on behalf of Department that HSN read with Customs Tariff Act not required to be read in present case as figure against para stood omitted by Kerala Finance Act which came into force - At this stage court may state that the appellant - assessee had moved Commissioner relevant provisions of Act for what is called as Advance Clarificatory Order –Held, Court has considered Rules of Interpretation of Schedules to the Kerala VAT Act - High Court has failed to consider the effect of the omission of the figure by Kerala Finance Act our view a vital aspect is lost sight of - In present case High Court has held that looking to HSN Code - repellant for insects such as flies mosquito has a direct relation to Heading - At same time High Court has that HSN Customs Tariff Act which deals with electrical or electronic devices for repelling insects fall HSN Code and looking at that HSN Code High Court has Code to be read along with Heading basic controversy therefore which arose before the High Court was whether above items fell within sub-Heading - In this connection court find that Kerala VAT Act is aligned with Customs Tariff which in turn aligned with HSN and consequently each product in question was required to be seen in context of HSN Code and judgments based thereon - Appeal disposed
JUDGMENT
Leave granted.
The short question involved in this Civil Appeal is whether mosquito repellants and other items fall under Entry 44(5) of Schedule III to Kerala VAT Act, 2003.
The items are enlisted as follows :
-------------------------------------------------------------------------------------------------------- Sl. Trade Name Name of Active Entry in relevant Licensing No. Ingredient Statute Licensing Authority Authority -------------------------------------------------------------------------------------------------------- 1. Mortein Coil, 8 D-trans Entry 55 in Schedule to Central hours, 10 hours and Allerthrin Insecticides Act, 1968 (at page Insecticide 12 hours 29 of Volume 2). License Board (CIB) as required under Section 3(e) for per Insecticide manufacture. Mandatory Act, 1968. declarations are made under Rule 19 of Insecticide Rules, 1971 -------------------------------------------------------------------------------------------------------- 2. Mortein Mats Prallethrin Entry 120 in Schedule to -do- Insecticides Act, 1968 (at page 29 of Volume 2). License required under Section 3(e) for manufacture. Mandatory declarations are made under Rule 19 of Insecticide Rules, 1971 -------------------------------------------------------------------------------------------------------- 3. Mortein Vaporisers Prallethrin Entry 120 in Schedule to -do- Insecticides Act, 1968 (at page 29 of Volume 2). License required under Section 3(e) for manufacture. Mandatory declarations are made under Rule 19 of Insecticide Rules, 1971. -------------------------------------------------------------------------------------------------------- 4. Mortein Instant Deltamethrin, Covered under Entry 55 in -do- Cockroach Killer Allerthrin, Schedule to Insecticides Act, (CIK) Mortein Imiprothrin and 1968 (at page 29 of Volume 2). Instant Flying Insect Cyphenothrin License required under Section Killer (FIK) Mortein 3(e) for manufacture. Instant All Insect Mandatory declarations are Killer (AIK) made under Rule 19 of Insecticide Rules, 1971 -------------------------------------------------------------------------------------------------------- 5. Lizol Disinfectant Benzalkonium A disinfectant in terms of Drugs Controller Surface Cleaner Chloride Section 3(b)(ii) of Drugs and Cosmetics Act, 1940 -----------------------------------------------------------------------------------------------
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