IMPORTANT POINT
It is well settled that when lack of jurisdiction is alleged, alternative remedy will not be a bar.

Headnote:Constitution of India – Article 226 – Revenue imposing demand on the assessee with retrospective effect on the strength of a Notification – Appellant not challenging the Notification specifically – The demand, however, challenged on ground of lack of jurisdiction – Validity of Notification ought to be gone into – High Court dismissing petition of ground of alternative remedy – Well settled, when lack of jurisdiction is alleged, alternative remedy will not be a bar – Appellant permitted to amend prayer portion of the petition. (Para 17, 18)
       (1998) 8 SCC 1; 2008(16) SCALE 310 – Relied upon
       Facts of the case:
       Appellant is an assessee under the Kerala Value Added Tax Act, 2003. The assessment year in question is 2005-06.
       The State of Kerala notified the list of goods specified therein to be taxable at the rate of 12.5%.
       According to the appellant, in this case Section 6(1)(a) of the Act would be applicable
       The Revenue, however, contends that Section 6(1)(d) shall apply.
       Appellant was assessed for the said assessment year for which value added tax at the rate of 12.5% was levied on the products of the appellant in terms of the Notification dated 21st January 2006.
       The appellant filed a writ petition.
       High Court refused to entertain the writ petition opining that the appellant has alternative remedies available to it as an appeal against the order of assessment was maintainable.
       Finding of the Court:
       High Court ought to entertain the writ petition.
       Result:
       Appeal allowed.

ORDER

1. Leave granted.

2. Appellant is manufacturer of coils, mats, aerosols, liquids/refills etc. which are used for driving away and destroying mosquitoes. Appellant is an assessee under the Kerala Value Added Tax Act, 2003 (for short, 'the Act'). The assessment year in question is 2005-06.

3. The State of Kerala, by Notification being SRO No.82/2006 dated 21st January 2006, notified the list of goods specified therein to be taxable at the rate of 12.5%. Item no.66 of the said Notification reads as under :

Sl.No.	Description of Goods	HSN Code
66	Mosquito repellents, electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof.	8516.79.20

4. According to the appellant, in this case Section 6(1)(a) of the Act would be applicable, the relevant portion whereof reads as under :

“6. Levy of tax on sale or purchase of goods.-(1) Every dealer whose total turnover for a year is not less than ten lakhs rupees and every importer or casual trader or agent of a non-resident dealer or dealer in jewellery of good, silver and platinum group metals or silver articles or contractor or any State Government, Central Government or Government of any Union Territory or any department thereof or any local authority or any autonomous body, whatever be his total turnover for the year, shall be liable to pay tax on his sales or purchases of goods as provided in this Act. The liability to pay tax shall be on the taxable turnover,-

(a) in the case of goods specified in the Second and Third Schedules at the rates specified therein and at all points of sale of such goods within the State ....

... ... ...

(c) in the case of transfer of the right to use any goods for any purpose whether or not for a specified period, at the rate of four per cent at all points of such transfer.

5. The Revenue, however, contends that Section 6(1)(d) shall apply. Clause (d) of sub-section (1) of Section 6 reads thus :

“(d) in the case of goods not falling under clauses (a) or (c) at the rate of 12.5% at all points of sale of such goods within the State Government may notify a list of goods taxable at the rate of 12.5%;”

6. Our attention has also been drawn to Entry 3808 of Chapter 38 of the Customs Tariff Act based on HSN Code which was applicable during the said assessment year; relevant portion whereof reads as under :

“3808 Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles, and fly-papers)”

7. Indisputably, the Act provides for the Interpretative Rules, the relevant portion whereof reads as under :

“The commodities in the schedules are allotted with Code Numbers, which are developed by the International Customs Organization as harmonised System of Nomenclature (HSN) and adopted by the Customs Tariff Act, 1975. However, there are certain entries in the schedules for which HSN Numbers are not given. Those commodities which are given with HSN Number should be given the same meaning as given in the Customs Tariff Act, 1975. Those commodities, which are not given with HSN Number, should be interpreted, as the case may be, in common parlance or commercial parlance. While interpreting a commodity, if any inconsistency is observed between the meaning of a commodity without HSN Number and the meaning of a commodity with HSN Number, the commodity should be interpreted by including it in that entry which is having the HSN Number.

HSN Numbers are allotted in the Schedules either in four digits or in six digits or in eight digits. The four digit numbers indicate the heading in the HSN classification, six digit numbers indicate the sub-heading and the eight digit numbers indicate the specific commodity number. While interpreting the commodities in the Schedules, the following guidelines may be followed.

I. ... ... ...

II. ... ... ...

III.

Click Here to Read the rest of this document

2009 Supreme(SC) 496

IMPORTANT POINTIt is well settled that when lack of jurisdiction is alleged, alternative remedy will not be a bar.

Cases Referred (1)

IMPORTANT POINT
It is well settled that when lack of jurisdiction is alleged, alternative remedy will not be a bar.