Ms.Ashique Enterprises:Goods … vs Asst.Commissioner(Kvat) on 24 September, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 207 of 2009()


1. MS.ASHIQUE ENTERPRISES:GOODS SHED ROAD:
                      ...  Petitioner

                        Vs



1. ASST.COMMISSIONER(KVAT),SPECIAL CIRCLE;
                       ...       Respondent

2. THE DEPUTY COMMISSIONER(APPELAS):

3. KERALA SALES TAX APPELLATE TRIBUNAL:

                For Petitioner  :SRI.P.RAGHUNATH

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :24/09/2009

 O R D E R
                   C .N. RAMACHANDRAN NAIR &
                           V.K. MOHANAN, JJ.
                   --------------------------------------------
                       S. T. Rev. No. 207 OF 2009
                   --------------------------------------------
               Dated this the 24th day of September, 2009
                                                                C.R.
                                 O R D E R

Ramachandran Nair, J.

The question raised in the Revision filed by the assessee is

whether the product “Roofit Mix” sold by the petitioner attracts tax at

the rate applicable to “Cement including White Cement” under Entry

27 of the First Schedule to the KGST Act at 15%. Petitioner’s specific

case is that the item does not fall under any of the Entries 1 to 176 of

the First Schedule to the Act and therefore it is taxable under the

residuary entry under item 177 at the rate of 8% on the first sale in the

State. We have heard counsel appearing for the petitioner and

Government Pleader for the respondents.

2. Government Pleader has taken the product description from

the Website of the manufacturer, namely, Roofit Mix Industries

Limited, wherein the product is described as follows:

These ready to use plasters consist of sand, cement,special
additives and fillers in a premixed dry condition.

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It is conceded by counsel for the petitioner that the item is used as

binding and filling materials while fixing asbestos roof and is also used

for repair of concrete slab, mainly to prevent leakage of water. Going

by the characteristics of the components that make the product, we are

of the view that the item falls under entry 11 which provides as

follows:

Asbestos sheets and products, cement products including
products in combination with other materials not elsewhere
mentioned in this Schedule.

Since cement is a component of the product and the same obviously

being one of the active ingredients, it can safely be treated as a cement

product falling under entry 11 above referred. Though we accept the

contention of counsel for the petitioner that the product cannot be

treated as cement as such, the contention of the petitioner that the item

falls under the residuary entry is absolutely unacceptable because we

have already noticed that the item falls under entry 11. Residuary entry

applies to items which are not covered by any of the specific entries.

So much so, we allow the revision partly by declaring the item as

falling under entry 11 taxable at 12% and direct the assessing officer to

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modify the assessment by applying the rate as stated above.

(C.N.RAMACHANDRAN NAIR)
Judge.

(V.K. MOHANAN)
Judge.

kk

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