High Court Kerala High Court

M.D.Joseph vs State Of Kerala on 21 July, 2006

Kerala High Court
M.D.Joseph vs State Of Kerala on 21 July, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST Rev No. 103 of 2003()


1. M.D.JOSEPH, ASOK LIME AND BLEACHER'S
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.K.B.MUHAMED KUTTY

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.M.JOSEPH

 Dated :21/07/2006

 O R D E R
                   C.N. RAMACHANDRAN NAIR &

                              K. M. JOSEPH, JJ.

                 ---------------------------------------------------

                S.T.(REV) NOS.103/03, 105/03 & 133/03

                 ---------------------------------------------------

                   Dated this the  21st  day of July, 2006


                                 JUDGMENT

C. N. Ramachandran Nair, J.

Common question arising in all these three cases

pertaining to the petitioner’s sales tax assessments for the years

1994-95, 1995-96 and 1996-97, is whether the produce

manufactured and sold by petitioner, namely bleaching powder,

is assessable as “chemical” under Entry 29 of the First Schedule

to the KGST Act, taxable at 10 per cent at the point of first sale

in the State, or whether it falls under “Lime and Dehydrated

lime” taxable at the reduced rate of 2.5 per cent under Entry 28

of IInd Schedule of Notification SRO No.1728/93 as claimed by

the petitioner. We have heard Dr.K. B. Mohamed Kutty, learned

senior counsel appearing for the petitioner and the learned

Special Government Pleader appearing for the respondent.

2. Petitioner is engaged in the manufacture and sale of

bleaching powder. The lion share of the production, according

STRV. 103, 105 & 133/03 2

to petitioner, was sold to Kerala Water Authority for treatment

of water supplied for drinking purpose. According to petitioner,

the item is essentially made of lime, though not lime as such

and, therefore, the same is entitled to concessional rate of tax at

2.5 per cent under the Notification above referred. On the other

hand, learned Special Government Pleader appearing for the

respondent contended that the Notification provides for

concessional rate of tax only on lime and dehydrated lime, and

not for any products made out of lime.

3. The first question to be considered is whether the item

comes within the description of “lime and dehydrated lime”

under the Notification above referred. The manufacturing

activity of the product as explained by the tribunal in its order,

which is not in dispute, is as follows:

“Bleaching powder is known as chloride of lime

and is a compound of Calcium, Chlorine and Oxygen

(Ca COCL). As per Encyclopaedia Britannica,

bleaching powder, also known as chloride of lime, is a

white solid having the odour of chlorine. It is formed

by the combination of chlorine with slaked lime and is

used as a bleaching and disinfecting agent.”

STRV. 103, 105 & 133/03 3

It is obvious from the above that bleaching powder is not lime or

dehydrated lime as claimed by petitioner. On the other hand, it

is a chemical compound constituting of Calcium, Chlorine and

Oxygen. The other name of bleaching powder, namely

chloride of lime obviously indicates that lime is a major

constituent of the product. However, what is covered by the

Notification is admittedly lime and dehydrated lime which are

one and the same and difference being that in the latter item,

moisture is not present. By no means, the product bleaching

powder can be identified as lime pure and simple. In the course

of manufacturing, it obviously undergoes a change involving

loss of identity of lime and what emerges is a new product with

different odour and charactoristics. In fact, the chlorine content

is what gives it the capacity to act as a disinfecting agent. In this

view of the matter, we are in complete agreement with the

finding of the tribunal that bleaching powder cannot be treated

as lime or dehydrated lime within the meaning of the

Notification above referred, entitling the petitioner for

STRV. 103, 105 & 133/03 4

concessional rate of tax on its sale.

4. The next question raised is whether the item can be

treated as a chemical falling under Entry 29 of the Ist Schedule

to the KGST Act. In this connection, we extract hereunder

Entry 29 as provided in the Schedule at the relevant time:

           "29.  Chemicals including         At the point of

                   caustic soda, caus-            first sale in the        10"

                   stic potash, soda                State by a

                   ash, sodium sulphate,        dealer who is

                   sodium silicate,                  liable to tax

                   sulphur, chemical               under Section

                      components and                  5.


                   mixtures not else-

                   where classified in

                    this schedule.




The tribunal has extracted the meaning of the term “Chemical”

as contained in the new Webster’s Dictionary of English

Language, as “a substance produced by or used in a chemical

process”. It is clear from the manufacturing process that

bleaching powder is a chemical product manufactured from out

of chemicals in a factory. In fact, petitioner himself is running a

STRV. 103, 105 & 133/03 5

factory manufacturing bleaching powder with the use of

chlorine, lime, water, etc. Therefore, petitioner cannot deny the

process in the manufacture of bleaching powder as anything

different from a chemical process. The product, therefore,

answers the Dictionary meaning of “chemical” as stated above.

Besides this, in common parlance also, we do not think that

anyone can treat bleaching powder as an item other than a

chemical. Even though it may be used as a disinfectant in water

purification, the same does not lead to the conclusion that it is

not a chemical. In fact, it is common knowledge that excess

chlorine escapes from water when bleaching powder is added

for purification. The indication in the Schedule above makes it

clear that apart from the generally known chemicals, even

chemical components and mixtures not else-where mentioned in

the Schedule are covered therein. In fact, Entry 29 is a residuary

entry for all chemicals except those specifically mentioned else-

where in the Ist Schedule to the KGST Act. In this view of the

matter, we uphold the finding of the tribunal that the product

STRV. 103, 105 & 133/03 6

manufactured and sold by petitioner, namely bleaching powder

answers the description of “chemical” under Entry 29 of the Ist

Schedule taxable at ten per cent. However, it is open to the

petitioner to claim the benefit of concessional rate, if available,

for supply to organisations like Water Authority, Government

Department, etc. Therefore, the Tax Revision Cases are

dismissed.

C.N. RAMACHANDRAN NAIR, JUDGE

K. M. JOSEPH, JUDGE

kbk.

C.N. RAMACHANDRAN NAIR &

K. M. JOSEPH, JJ.

S.T.REV.NOS.103/03,

105/03 & 133/03

JUDGMENT

21st July, 2006.