Amol

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SALES TAX REFERENCE NO. 33 OF 2010

[

The Commissioner of Sales Tax, ] Maharashtra State, 8^th floor, ] Vikrikar Bhavan, Sardar ] Balwant Singh Dhodi Marg, ]

Mazgaon, Mumbai – 400 010. ]…Applicant

Versus

M/s. Wockhardt Ltd., ] Wockhardt House, ] C-13, Bandra Kurla Complex, ]

Mumbai – 400 060 ]…Respondent ______________________________________________________

Ms Jyoti Chavan, Addl GP, with Mr Himanshu Takke, AGP, for

the Applicant-State.

Mr Ishaan V Patkar, with Mr Vinit V Raje, Durgesh G. Desai &

Yeshwant J. Patil, i/b, Jindagi Shah, for the Respondent.

______________________________________________________

AMOL

PREMNATH

JADHAV

CORAM M.S. Sonak &

Digitally signed by AMOL PREMNATH

JADHAV Advait M. Sethna, JJ.

Date: 2025.09.20 12:40:42 +0530

DATED: 18 September 2025

Oral Judgment: - (per M. S. Sonak, J)

1. Heard Ms Jyoti Chavan, learned Additional Government Pleader with Mr Himanshu Takke, AGP for the Applicant-State and Mr Ishaan V Patkar with Mr Vinit V Raje, Mr Durgesh G

Desai, Mr Yeshwant J Patil i/b, Ms Jindagi Shah for the Respondent.

2. By Judgment and Order dated 31 December 2005,the Maharashtra Sales Tax Tribunal (Tribunal) has referred the following question to this Court for our decision:-

“Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the product ‘Byozyme’ is a Fertiliser covered under Entry C-I-4 of the Bombay sales Tax Act, 1959, and not a ‘Plant Growth Promoter’ covered by Schedule Etry C-II-85 taxable at the rate of 8% as determined by the Commissioner of Sales Tax, Maharashtra State, Mumbai.”

3. The facts and circumstances in which this reference came to be made are set out in the statement of facts annexed to the Tribunal’s referral order dated 31 December 2005, and therefore, we do not propose to repeat them in this order.

4. Schedule entries C-I-4 and C-II-85 for the relevant period, read as follows: -

“SCHEDULE ENTRY C-I-4 :

Fertilisers excluding anhydrous ammonia 4%

“SCHEDULE ENTRY C-II-85 :

Insecticides, pesticides, fungicides, weedicides, rodenticides, herbicides, antispouring products and plant growth promoters or regulators and similar products other than mosquito repellants and disinfectants. 8%”

5. The Applicant-Revenue contends that the assessee’s product qualifies as a “plant growth promoter”. The Respondent assessee, however, claims that their product is nothing but a fertiliser under entry C-I-4.

6. At the outset, we note that the onus of establishing that goods are classifiable under a particular tariff entry is on the Revenue. This principle is not in dispute and has been stated so by the Hon’ble Supreme Court in the case of Hindustan Ferodo Ltd. Vs Collector of Central Excise, Bombay, 1997 (89) ELT 16 (SC)

7. In this case, the Revenue has not led any evidence to establish that the assessee’s goods can be classified as “plant growth promoters”. On the contrary, the assessee has laid expert evidence to suggest that their product is a fertiliser covered under entry C-I-4.

8. Ms Chavan did try to pick several holes in the expert evidence produced on behalf of the assessee. However, even we were to discard the expert evidence produced by the assessee, in the absence of any evidence laid on behalf of the Revenue to show that the assessee’s product could be classified as plant growth promoter, we fail to comprehend how the Revenue, could be said to have discharged the onus which lay upon it show that the assessee’s products were classifiable under Schedule entry C-II-85.

9. In the above circumstances, it would be difficult to answer the referred question in favour of the Revenue or against the assessee.

10. In the case of Hindustan Ferodo Ltd (supra), the issue involved was whether the rings punched from asbestos boards fell under Item 22F of the Central Excise Tariff. In this context, the Hon’ble Supreme Court noted that it was not in dispute, as it could not be that the onus of establishing tha