Feeling aggrieved and dissatisfied with the impugned judgment and order dated 17.12.2008 passed by the High Court of Kerala at Ernakulam in OT Appeal No.6 of 2006 by which the High Court has dismissed the said appeal and has upheld the order passed by the Commissioner with respect to the classification of the goods in question, the assessee has preferred the present appeal.
Also Read: https://newslaw.in/case-type/civil/c-a-no-001144-001146-2011/
It was the case on behalf of the appellant that the products at (i) to (iii) were classifiable under Entry No 44(5) of the III Schedule to the Kerala VAT Act as being ‘pesticides, insecticides’ corresponding to HSN Civil Appeal No.1335 of 2010 Code 3808 and therefore subject to VAT at the rate of 4%. The High Court by the impugned judgment and order has dismissed the said appeal confirming the order passed by the Commissioner of Commercial Taxes. Description HSN Code 44 Fertilizers, pesticides, weedicides, insecticides, fungicides, herbicides, rodenticides, anti- sprouting products and plant growth regulators, biofertilizers, micronutrients and similar products 5 Pesticides, weedicides, insecticides, 3808 fungicides, herbicides, rodenticides, anti- sprouting products and plant growth regulators, and similar products other than micro products 3808 Civil Appeal No.1335 of 2010 (d) Entry 36(8)(h)(vi) of the Third Schedule reads as under: Sl. Learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the High Court has materially erred in not accepting the case on behalf of the appellant that the products item nos.1 to 3 hereinabove shall be classifiable under Entry 44(5) of III Schedule of KVAT Act. It is submitted that the Mortein Spray kills insects, hence even according to the respondents’ interpretation, Mortein Spray cannot fall under Item No.66 of SRO/2006, as Item no.66 deals only with Mosquito repellants.
No 22 @ page 282- 297; Order dated 14.07.2006 passed by this Court in State of UP vs Knight Queen Industries Pvt. No 23 @ page 298- 300; Ashok Agencies vs State of Karnataka 2008 SCC Online Kar 141 (Para 8 to 12); Sl.
It is submitted that Harpic & Lizol would still continue to fall in Entry 44(5) even after deletion of HSN Code 3808, Civil Appeal No.1335 of 2010 as they are disinfectants under the Drugs & Cosmetics Act/Rules and manufactured under the licence granted as a disinfectant, under the said act.
Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
(2) SCC 646 and the decision of the Andhra Pradesh High Court in the case of Reckitt Benckiser India Ltd. 10
It is further submitted that most importantly HSN Code was not deleted from Entry 36(8)(h)(vi) of Schedule III, even though by virtue of notification K.G. 13 It is further submitted that this Court in the case of Sujanil Chemo Industries vs CCE & Customs, Pune (2005) 4 SCC 189 (para 6) in the context of Licel used for killing lice in human hair has held that any medicine which kills disease or is a palliative or curative is therapeutic. It is submitted Civil Appeal No.1335 of 2010 that the Dettol is manufactured under a drug licence issued under the Drugs & Cosmetics Rules and its price has been regulated by the National Pharmaceutical Pricing Authority under Drug Price Control Orders issued from time to time including DPCO, 2013. The appellant submits that Dettol being an antiseptic falls under Entry 39 of Schedule K provided under Rule 123 of the Drugs & Cosmetics Rules. It is submitted that the SLPs against the decision of the Rajasthan High Court by the Revenue have been dismissed by this Court. It is submitted that the product “Mortein Mosquito Coil, mat and liquid vaporizer” would definitely come under Entry 66 “Mosquito Repellent”. 2 It is submitted that the product such as Harpic Toilet Cleaner and Lizol Floor Cleaner are not used in relation to controlling pets and insecticides in the agricultural field.
It is submitted that the High Court has specifically found that the appellant has no case that Dettol is able to prevent or cure any disease and therefore has rightly held the Dettol is not a medicament. It is the case on behalf of the appellant that as the aforesaid products are manufactured under the licence granted under the Insecticides Act and therefore the said products can be said to be insecticides classifiable under Entry 44(5). Sl.No.66 of Notification SRO 82/06 dated 21.01.2006 issued under Section 6(1)(d) of the Kerala VAT Act which covers “Mosquito Repellants”.
In the present case under the KVAT Act there is a specific Entry Mosquito repellant so far as the product electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof are concerned and therefore the said specific entry shall be applicable in any case, the same cannot be said to be insecticides. 2 Now so far as the products Harpic and Lizol is concerned, it is the case on behalf of the appellant that the same is classifiable under Entry 44(5) of III Schedule of KVAT Act – HSN Code 3808 and the said products are also classifiable as insecticides. We are in complete agreement with the view taken by the High Court that the product Harpic and Lizol shall not be classifiable under Entry 44(5) and shall be classifiable under Civil Appeal No.1335 of 2010 Entry 27(4) of SRO 82/2006 chargeable to tax at 12.5%.
6
Thus the Dettol is used as an antiseptic liquid and is used in hospitals for surgical use, medical use and midwifery, due to therapeutic & prophylactic properties. Different tests are laid down for interpretation of an entry in a taxing statute, namely, dictionary meaning, technical meaning, user’s point of view, popular meaning, etc.” XXX XXX XXX “38.
Also Read: https://newslaw.in/case-type/civil/c-a-no-003481-003481-2022/
Civil Appeal No.1335 of 2010 9
Case Title: M/S RECKITT BENCKISER (INDIA) LTD. Vs. COMMISSIONER COMMERCIAL TAXES (2023 INSC 328)
Case Number: C.A. No.-001335-001335 / 2010
