IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 OT.Appeal.No. 5 of 2006() ------------------------- AGAINST THE ORDER NO.C.8.48888/2005 DATED 27/04/2006 of COMMR. OF COMMERCIAL TAXES, TRIVANDRUM .................... APPELLANT: --------------------------- M/S. SREE PADMANABHA ENTERPRISES, OPP. P.R.S. HOSPITAL, KILLIPALAM, KARAMANA, THIRUVANANTHAPURAM, PIN-695 002, REPRESENTED BY MANAGING PARTNER, K.J. MOHANDAS KAMATH. BY ADV. SRI.VIJAYAN. K.U. RESPONDENTS: ------------- 1. COMMISSIONER, COMMERCIAL TAXES, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY G.P. SRI.TEKCHAND THIS OTHER TAX APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, ALONG WITH WPC NO. 19246 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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