IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 ST.Rev..No. 257 of 2007 --------------------------------- T.A.NO.129/2006 OF STAT ADDL.BENCH, KOTTAYAM. .................... REVN. PETITIONER: ----------------------------- M/S. KANAM LATEX INDUSTRIES PVT. LTD., P.O.BOX NO.28, OOPPOTTIL BUILDINGS, KOTTAYAM-686 001. BY MR.JOSEPH MARKOSE, SENIOR ADVOCATE, ADV. MR.MATHEWS K.UTHUPPACHAN. RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), TRIVANDRUM. BY GOVERNMENT PLEADER MR. V.K. SHAMSUDEEN. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 12/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ S.T.Rev. NO: 257 OF 2007 ----------------------------------------------------------------------------------- Dated this the 12th February, 2009. JUDGMENT RAMACHANDRAN NAIR, J. The petitioner is engaged in manufacture and sale of surgical gloves both sterilized and non-sterilized, examination gloves etc. Since the products are made of rubber the petitioner filed sales tax return declaring turnover of surgical gloves taxable at 8% under entry 145 of first schedule to the KGST Act. This entry provides for tax on surgical equipments and instruments, medical implants and injection needles. However, since the product is made of 100% natural rubber, the Assessing Officer assessed the turnover under entry 125 of the First Schedule to the Act which provides for tax at 12% on all rubber products and products of mixture of rubber and synthetic rubber. The appeals filed by the petitioner at two levels were unsuccessful and hence this revision petition is filed raising the question on rate of tax on surgical gloves and examination gloves. 2. We have heard senior counsel Shri. Joseph Markose appearing for the petitioner and Govt. Pleader appearing for the S.T.Rev.No: 257/2007 2 respondent. 3. In order to appreciate the contentions raised we have to refer to the relevant entries viz., 125 & 145 of first schedule to the KGST Act which are extracted hereunder:- Sl.No: Description of goods Point of levy Rate of tax 125 Rubber products and products At the point of mixture of rubber and of first sale synthetic rubber including in the State tread rubber not elsewhere by a dealer mentioned in this schedule who is liable or in the fifth schedule to tax u/s 5. 12% 145 Surgical equipments and instruments, medical implants and injection needles -do- 8% 4. During hearing senior counsel appearing for the petitioner produced samples of products available in the market which go to establish that surgical gloves are made of rubber as well as synthetic materials like neoprene, poly chloroprene etc. Further it is also seen that besides sterilized surgical gloves sold non- sterilized ones are also sold which could be used by the customer after sterilization in autoclave. The contention raised by the petitioner is that even though surgical gloves produced and sold by the petitioner are made of rubber it cannot be assessed under entry S.T.Rev.No: 257/2007 3 125 because it falls in the description of surgical equipment under entry 145. 5. Govt. Pleader on the other hand contended that since the product is fully made of natural rubber, it falls under entry 125 because all rubber products not elsewhere mentioned are covered by entry 125. According to him those items which are excluded from 125 are other rubber products like tyres, tubes, flaps etc which are covered by other specific entries providing for tax on such rubber products. 6. Counsel for the petitioner has relied on the decision of this Court in State of Kerala v. Narayanan Nambiar {2004(2) KLT 186} and that of the Supreme Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh (47 STC 359) and contended that surgical gloves are used generally by Surgeons and those engaged in surgery and, therefore it is a surgical equipment. Even though the decisions referred to are not exactly on the point arising in this case both the decisions support the petitioner because the literal meaning was not accepted by the Court for the purpose of deciding the rate of tax on the product involved. In the case decided by this Court the finding is that disposable syringe made of plastic is not an article of plastic but is a drug because S.T.Rev.No: 257/2007 4 drug includes disposable syringes as well. Similarly in the case decided by the Supreme Court the finding is that syringe is not a glassware but is an hospital equipment or apparatus. 7. Entry 145 provides for rate of tax among other things on all surgical equipments. Surgical equipments are such of the equipments used by Surgeons and those associated with surgery. The dictionary meaning of equipment includes articles, clothings, etc for a purpose. Surgical gloves is an essential equipment for Surgeons, Nurses etc engaged in surgery. Therefore, it is a surgical equipment and so much so surgical gloves, whatever be the material with which it is made falls under entry 125. It is to be seen that entry 125 excludes rubber products which are covered elsewhere in the first schedule or in the fifth schedule. Therefore, if any rubber product falls under any other specific entry in the first schedule or the fifth schedule, the same cannot be taken as covered by entry 125. Since the purpose of surgical gloves is for use by surgeons and those who are engaged in surgery it is the surgical equipment falling under entry 145 of the first schedule to the Act. Therefore, we hold that sterilized surgical gloves sold by the petitioner answers the description of surgical equipment taxable under entry 145 at 8% as against the assessment under S.T.Rev.No: 257/2007 5 entry 125 at 12%. So far as non-sterilized surgical gloves are concerned there is specific instruction in the product cover that they are also made as surgical gloves and marketed as such but with instruction to sterilize it before use in autoclave. Instructions are seen printed in the cover. In other words non-sterilized surgical gloves are also assessable as surgical equipments under entry 145. It is also worthwhile to note that along with surgical equipments under entry 145 medicines and drugs of all kinds, medicated bandages, surgical cotton, absorbent cotton, wool, I.P bandage are all taxable at the same rate of 8% under entries 87 and 88 of the first schedule. The legislative intention to provide uniform rate of tax at 8% on goods directly used in medical care is very clear from these entries. 8. The position with regard to examination gloves are different because these items are not ear-marked as surgical gloves. It is used for the examination of patients and is not of the quality required for use as surgical gloves. The relative lower value reflects the quality of the item and so much so examination gloves cannot be treated as surgical gloves. Since examination gloves are made of rubber petitioner is liable to pay tax on this item as rubber product under entry 125 of first schedule to the KGST Act. S.T.Rev.No: 257/2007 6 9. S.T.Revision is consequently allowed in part to the extent indicated above with a direction to the officer to revise assessment of turnover of surgical gloves both sterilized and non-sterilized at 8% under entry 125 and retain the turnover of examination gloves at 12% under entry 125 of the first schedule to the KGST Act. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: