IN THE HIGH COURT OF KERALA AT ERNAKULAM
OT.Appeal.No. 5 of 2006()
1. M/S. SREE PADMANABHA ENTERPRISES,
... Petitioner
Vs
1. COMMISSIONER,
... Respondent
2. THE SECRETARY TO GOVERNMENT,
For Petitioner :SRI.VIJAYAN. K.U.
For Respondent :SRI.RAJU JOSEPH, SPL.GOVT.PLEADER(TAX)
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :26/05/2008
O R D E R
C.N.RAMACHANDRAN NAIR &
V.K.MOHANAN, JJ.
....................................................................
O.T.Appeal No.5 of 2006 &
W.P.(C) No.19246 of 2006
....................................................................
Dated this the 26th day of May, 2008.
JUDGMENT
Ramachandran Nair, J.
The petitioner is challenging Annexure-D which is revised
classification issued by the Commissioner of Commercial Taxes clarifying
that sanitary fittings made of Brass are taxable at 12.5% under Entry 101 of
SRO 82/2006 dated 21.1.2006. Petitioner’s case is that Brass items are
covered by Entry 3(2) of the Third Schedule to the KVAT Act and so much
so, Brass sanitary fittings cannot be notified under Section 6(1)(d) of the
Act. We are unable to accept this proposition because Section 6(1)(d)
provides for tax at 12.5% on items notified by the Government which are
not covered by clauses (a) to (c) of Section 6(1) of the Act. Even though
in principle the Government is free to notify Brass sanitary fittings under
Section 6(1)(d), we do not find much of the items sold by the petitioner, the
description of which are given in Annexure-D, are covered by Entry 101 of
SRO 82/06. In fact the heading of Entry 101 provides sanitary equipments
and fittings of every description. But the items 1 to 13 detailed thereunder
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do not cover all such items. In fact sub-Entry (7) of Entry 101 of the
notification provides for tax on sanitary ware and parts thereof made of
copper. To our knowledge, copper is not generally used for manufacture of
sanitary equipments. However, Brass is extensively used for manufacture
of sanitary equipments such as taps, both Short body and Long body, Bib
Cocks, Ball Cocks etc. Even though various types of sanitary equipments
made of Brass are available in the market, there is no item in Entry 101 of
the Schedule to the notification covering Brass items. However, taps made
of non-ferrous metals are covered under sub-Entry 13 of Entry 101 of the
notification. Probably Brass taps will be covered by this entry. From the
description of the items given in Annexure-D it is clear that petitioner is not
only dealing with Brass taps, but several sanitary products made of Brass
are sold by the petitioner. So much so, the application for classification is
not properly considered by the Commissioner because he has not stated
under which of the Entry of item 101 of the notification, the petitioner’s
various products fall. As already noticed, pipes and taps made of Brass are
covered by special Entry 13 of Entry 101 of the notification under non-
ferrous metal. Since the rate of tax on other sanitary products sold by the
petitioner made of Brass are not considered by the Commissioner’s order,
we set aside Annexure-D and direct the Commissioner to reconsider the
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matter. Incidentally the Commissioner should also examine whether the
items made of copper referred to in sub-Entry 7 of Entry 101 of the
notification are really intended to be copper or Brass and if any mistake has
happened, he is free to correct the same. The petitioner will be given an
opportunity to furnish the details of products for the Commissioner to issue
final clarification after hearing the petitioner.
C.N.RAMACHANDRAN NAIR
Judge
V.K.MOHANAN
Judge
pms