IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 OT.Appeal.No. 1 of 2006() ------------------------- (AGAINST ORDER NO.C3.42359/2005 DATED 19/11/2005 of COMMR. OF COMMERCIAL TAXES, TRIVANDRUM) .................... APPELLANT / ASSESSEE ------------- M/S.THOMSON PAPER PRODUCTS, KANDAMANGALAM COMPLEX, BASIN ROAD, ERNAKULAM, COCHIN-682 031, REPRESENTED BY ITS MANAGER, SHRI.P.D.PAULSON. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.JOY THATTIL ITTOOP RESPONDENTS: ------------- 1. THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. COMMERCIAL TAX OFFICER, KVAT CIRCLE-I, ERNAKULAM. BY GOVERNMENT PLEADER THIS OTHER TAX APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, ALONG WITH WPC NO. 36213 OF 2007 & WPC NO. 415 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- O.T.A. No.1 of 2006, WP(C) Nos.36213 of 2007 & 415 of 2008 --------------------------------- Dated, this the 11th day of June, 2008 J U D G M E N T Ramachandran Nair, J. The only issue arising in all the three cases filed by the same assessee pertains to the tax liability on assessee's product, 'white oats', under the Kerala Value Added Tax Act, 2003. On application filed under Section 94 of the Act, the Commissioner of Commercial Taxes, vide Annexure-A order produced in O.T.A.No.1/2006, clarified that 'white oats' falls under the residual entry taxable at 12.5%. While petitioner is challenging the clarification in the O.T.A, in the connected two cases, challenge is against assessments at the higher rate of tax at 12.5%. 2. We have heard learned counsel appearing for the assessee and learned Government Pleader appearing for the respondent. 3. The first question to be considered is whether 'white oats' sold by the assessee under the name “Shantis” is exempted from tax under Original Entry 9 renumbered as 12 of the 1st schedule to the Act and if not, the appropriate rate applicable to the O.T.A.No.1/06, WP(C) Nos.36213/07 & 415/08 -2- product under the other schedules to the Act. Learned counsel appearing for the assesee has referred to the word used 'Oats' in Entry 12(3) of the 1st schedule (previously item 9(3) of the same schedule) and contended that 'Oats' in all forms are exempted from tax. In order to appreciate the contention, we have to refer to the relevant entry, which is extracted hereunder. “12. Coarse grains other than rice and wheat (1) Rye (2) Barley (3) Oats (4) Maize (Corn) (5) Grain Sorghum (6) Buckwheat (7) Millet including Jawar, Bajra, Ragi. (8) Canary seed (9) Paddy and Paddy Chaff (10) Other cereals” The question to be considered is whether 'white oats' marketed by the assessee under the name “Shantis” can be treated as 'Oats' as referred in the above entry. We have seen the product produced in the Court, which is prepared oats flakes sold in a sealed container made of plastic or poly carbonate. It is noticed from the product description that no additives are used by the assessee in the preparation and the product is 100% oats. It is stated in the O.T.A.No.1/06, WP(C) Nos.36213/07 & 415/08 -3- attached label that the item can be consumed after cooking in milk or water for 5 minutes. It is obvious from the nature of the product and the product description that it is not 'Oats' grain pure and simple, but is a preparation made of it. It may probably be comparable to rice flakes made from rice or corn flakes made from corn. Entry heading of Item 12 of 1st schedule makes it clear that the items intended to be covered under the group heading are 'coarse grains'. The assessee's product is not 'coarse grain' but a refined product made out of coarse grain 'oats'. Moreover, items 1 to 9 arrayed under Entry 12 of 1st schedule are not any product of the grain named therein, but are grains of various types in the pure and simple form. We, therefore, reject assessee's claim that the product is exempted from tax under item 12(3) of the 1st schedule to the Act. 4. The next question to be considered is whether the item falls under any entry of any of the other schedules to the Act to justify the clarification and assessment under the residual entry at 12.5%. Learned counsel for the assessee has referred to items contained in Entries 48 & 49 of the 3rd schedule to the Act, which provide for levy of tax on various forms of grains and food products. For easy reference, we extract hereunder Entries 48 & 49 of the 3rd O.T.A.No.1/06, WP(C) Nos.36213/07 & 415/08 -4- schedule to the Act. “48. Flour, Atta, Maida, Suji, Besan and dough (1) Wheat or meslin flour (2) Rye flour (3) Maize (corn) flour (4) Rice flour (puttu podi and the like) (5) Other cereal flour (6) Flour, meal and powder of the dried leguminous vegetables (7) Wet mix. 49. Food products like pickles, corn flakes, savouries, sweets made of groundnuts, gingelly, other than those sold under brand name registered under the Trade Marks Act, 1999. (1) Pickles (2) Savories like chips, popcorn, murukku, achappam, pakoda, mixture, chikky items, kuzhalappam and similar preparations. (3) Corn flakes (4) Sweets made of groundnuts or gingily.” Obviously 'oats' is not an item covered by Entry 48. However, it is a food product like corn flakes, which is covered by Entry 49. Even though learned Government Pleader pointed out that only four items are covered by Entry 49, which does not prescribe 'oats' specifically, we find item (2) of Entry 49 refers to similar preparations. Since Entry 49 provides for food products, we are of the view that food products other than those mentioned elsewhere O.T.A.No.1/06, WP(C) Nos.36213/07 & 415/08 -5- will come under 'similar preparations' referred to in Entry 49(2) of the 3rd schedule. We, therefore, hold that 'white oats' other than those sold under brand name registered under the Trade Marks Act 1999, will be taxable at 4% under Entry 49(2) of the 3rd schedule to the KVAT Act. It is for the Assessing Officer to examine whether the appellant has obtained a trade mark registration for the product and if not to assess the product at 4%. In view of the above findings, we allow O.T.A.No.1/2006 in part by holding that 'white oats' is taxable under Entry 49(2) of the 3rd schedule @ 4%, if the assessee does not have a registered brand name under the Trade Marks Act, 1999. In view of the above, we direct the Assessing Officer to revise the assessments made up to date at 4% but forfeit excess collection of tax after date of clarification. The O.T.A and the writ petitions are allowed to the extent indicated above. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg