IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 ST.Rev..No. 200 of 2007() ------------------------- TA.291/2005 of S.T.A.TRIBUNAL,ADDL.BENCH,KOXHIKODE. .................... PETITIONER (S): -------------------- M/S.NECTAR LAB ASSOCIATES, EMILY ROAD, KALPETTA P.O. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE SECRETARY (TAXES), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. PRADEEP. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 17/12/2008 ALONG WITH STRV NO. 213 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- S.T. REVISION NOS.200 & 213 OF 2007 --------------------------------------------------------- Dated this the 17th day of December, 2008 O R D E R Ramachandran Nair, J. The question raised in these connected Tax Revisions filed by the petitioners is whether animal feed concentrate with vitamin AD3 sold by the petitioners under the brand name Calcimin-D is cattle feed assessable to tax at the rate of 4% under item 26 of the 1st Schedule to the Kerala General Sales Tax Act (hereinafter referred to as "the Act") or at the rate of 8% under item 17 of the 1st Schedule to the Act. Besides, the manufacture and sale of the above product, the petitioners are engaged in the manufacture and sale of dog biscuits. Since dog biscuits are not covered in any specific entry, turnover of the same was also assessed under the residual entry along with the turnover of Calcimin-D. We have heard counsel appearing for the petitioners and Government Pleader appearing for the respondent. 2. We do not find any entry for dog biscuits under the 1st Schedule to the Act and, therefore, the turnover of this item was rightly assessed under the residual entry at 8%. However, we will proceed to examine the question whether Calcimin-D can be treated as cattle feed to be assessed S.T.REVISION NOS. 200 & 213/2007 2 under entry 26 of the 1st Schedule to the Act at 4% as claimed by the petitioners. For easy reference, we extract hereunder entry 26 of the 1st Schedule to the Act. "Cattle feed(including gingili At the point of first oil cake, groundnut oil cake, sale in the State by a 4% tamarind seed seed, tamarind dealer who is liable seed powder, husks of pulses, to tax under section 5. bran, fish feed and poultry feeds) other than those specifically mentioned in this Schedule" 3. Counsel appearing for the petitioners relied on the decision of the Supreme Court in Sun Export Corporation v. Collector of Customs reported in (1997) 6 S.C.C. 564 and contended that the petitioners' product, namely Calcimin-D is also cattle feed. The Government Pleader, on the other hand, contended that the entry in the Customs Act in the decision above referred is different from entry 26 and, therefore, the decision has no application. In order to appreciate the nature of the claim, we have to examine the purpose and use of the petitioners' product. 4. From the leaflet on the product submitted by counsel for the petitioners, it is clear that the item is vitamin mineral supplement meant to be fed to milking cows, heifers and calves. The instructions contained in S.T.REVISION NOS. 200 & 213/2007 3 the leaflet shows that small quantity ranging from 15 gms. to 50 gms. should be mixed with any animal feed or with water for feeding cows or calves. While the case of the petitioners is that the item is animal feed concentrate with vitamin AD3, the Government Pleader submitted that the item by itself is not animal feed, but at the maximum it is only a supplement to the feed and, therefore, it will not fall under entry 26 of the 1st Schedule to the Act. We are unable to agree with the argument of the Government Pleader because cattle feed contained in entry 26 does not have a restricted meaning covering only the actual feed supplied to animals to take care of their appetite. It is specifically stated in the leaflet that the product is not a drug and the respondents have no case that it is an item used for treatment of any kind of disease or for prevention of any disease. It is very clear from the leaflet that the product is a mineral vitamin supplement with calcium to be fed to animals for retention of their health and for qualitative and quantitative improvement in the output, that is, milk. What is fed to the cattle for improvement or retention of health or even for improving the quantity and quality of the milk produced should be taken as feed irrespective of whether it is concentrated with vitamins or minerals or not. Probably medicines given to animals for treatment or to prevent any disease may be outside the scope of feed, but whatever else S.T.REVISION NOS. 200 & 213/2007 4 fed to animals should be taken as animal feed. It is clear from the leaflet that the item supplied by the petitioners can be fed to animals by mixing it with water or with other feed. Therefore, the item itself constitute feed and for easy intake, it is advised to be mixed with other animal feed or with water. Above all, the provision for lower rate of tax on cattle feed is to encourage live stock and milk production in the State. In other words, the beneficiaries are cattle farmers who will ultimately bear tax liability on the feed purchased by them. The Department has no case that the item manufactured and sold by the petitioners as Calcimin-D is not a food supplement. We, therefore, hold that Calcimin-D manufactured and sold by the petitioners is cattle feed entitled to lower rate of tax under item 26 of the 1st Schedule to the Act. The Tax Revisions are accordingly allowed declaring that the petitioners are entitled for lower rate of tax at 4%. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ S.T.REVISION NOS. 200 & 213/2007 5 C.R. C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. S.T.REVISION NOS. 200 & 213/2007 O R D E R 17th December, 2008 S.T.REVISION NOS. 200 & 213/2007 6