High Court Kerala High Court

M/S. Sree Padmanabha Enterprises vs Commissioner on 26 May, 2008

Kerala High Court
M/S. Sree Padmanabha Enterprises vs Commissioner on 26 May, 2008
       

  

  

 
 
  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

2

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

3

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