IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 ST.Rev..No. 124 of 2008() ------------------------- TA.28/2007 of S.T.A.TRIBUNAL,ADDL.BENCH,PALAKKAD .................... APPELLANT: : RESPONDENT: ------------------------------- M/S.CLASSIC SPICES PVT.LTD., E.P.AGRO INDUSTRIAL ESTATE, CHERPULASSERY ROAD, OTTAPPALAM, PALAKKAD DISTRICT, REPRESENTED BY E.P.RAJKUMAR, MANAGING DIRECTOR. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): APPELLANT: ------------------------- STATE OF KERALA. BY G.P. SRI. V.K. SHAMSUDEEN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. -------------------------------------------- S.T.Rev. No. 124 OF 2008 -------------------------------------------- Dated this the 4th day of March, 2009 C.R. JUDGMENT Ramachandran Nair,J. The first question raised in the Revision filed by the assessee pertains to rate of tax on sambar powder, meat masala powder, rasam mix and pickle mix powder. Even though assessee raised a specific claim that all the items fall under entry 32 of First schedule to the KGST Act at the relevant time taxable at the rate of 4%, the assessing officer assessed the items under residuary entry at 8%. The assessee's appeal ;was allowed by the first appellate authority declaring eligibility for assessment under entry 32 at 4% which was reversed by the Tribunal restoring the assessment, against which this revision is filed. 2. We have heard counsel appearing for the petitioner-assessee and Government Pleader appearing for the respondent. Entry 32 at the relevant time was as follows: 32. Chillies, corriander seeds, including their powders, curry powders, spices powder and garlic. 2 There is no dispute that sambar powder meat masala powder and rasam mix powder are used only for making curries. Therefore these items squarely fall within the meaning of curry powder contained in entry 32. So far as pickle mix powder is concerned, the contention of the petitioner is that the said mix is used to make pickle which again acts as a curry and so much so, pickle mix powder also answers the description of curry powder. Government Pleader contended that pickle is not known in common parlance as curry and therefore pickle mix powder cannot be treated as curry powder. We are unable to accept the contention raised by the Government Pleader because pickle is not taken as staple food but is taken along with it as a curry only. Even though in common parlance, it is not called curry, it serves as curry only, and so much so powder used for making pickle is rightly classifiable as curry powder. Besides this it is common knowledge that pickle mix is made of various spices such as chilly, pepper, turmeric powder, etc which answer the description of spices and so much so pickle mix can be classified as spice powder which also is covered by entry 32 and so much so, this is an item taxable at the rate of 4% at the relevant time as claimed by the assessee. In view of this finding, we 3 answer the first question in favour of the petitioner and against the revenue. 3. The next question raised is with regard to rate of tax on turmeric powder. Turmeric at the relevant time was covered by entry 138 which was taxable at 4%. Even though turmeric powder was not specifically covered by the entry through explanation introduced by Finance Act 2000, with effect from 1.4.2000, turmeric powder was also brought along with turmeric under the renumbered entry 159. Counsel for the petitioner contended that explanation is clarificatory in nature and so much so turmeric as contained in the original entry includes its powder as well. We find force in this contention because when forms of turmeric are not described, it is possible to contend that turmeric in all it's forms are covered by the entry "turmeric". Department has no case that item sold is anything other than turmeric powder which is powder form of turmeric without any value of addition and so much so we feel the explanation introduced serves only as clarification to the original entry and therefore turmeric powder even before the introduction of explanation is covered by entry 138 taxable at 4%. In any case turmeric powder cannot be assessed under residuary entry because spices powder was covered under entry 32 and turmeric falls 4 under the category of spices, though it is specifically covered by another entry in the Schedule. Therefore alternatively it is possible to contend that turmeric powder is a spice powder attracting same rate of tax of 4% as claimed by the petitioner under entry 32. Above all we find that entry 32 is generally exhaustive in nature which covers almost all forms of curry powder, spices powder, etc. Therefore wherever any spice powder is not specifically covered by another entry, that will fall under entry 32 which is a residuary entry for all spices in powder form. Consequently we answer this question also in favour of the assessee and against the revenue. Revision filed by the petitioner is allowed by reversing the order of the Tribunal, and with direction to the assessing officer to assess the above products of the petitioner at the rate of 4%. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. kk 5