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. 9 of 2008() ----------------------- TA.317/2007 of S.T.A.T., ADDL.BENCH-II, ERNAKULAM .................... REVISION PETITIONER/APPELLANT/ASSESSEE ---------------------------------------------------------- KAMDAR BROTHERS, REP. BY ITS PROPRIETOR, CHANDULALL S. KAMDAR. BY ADV. SRI.C.J.XAVIER RESPONDENT(S): --------------- STATE OF KERALA. BY G.P. SRI. VINOD CHANDRAN 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. 9 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2009 C.R. JUDGMENT Ramachandran Nair,J. The question raised in the revision filed by the assessee is whether spray oil sold by the assessee for spraying on pepper to prevent fungus attack is a petroleum product falling under entry 108 (vi) of the First Schedule to the KGST Act at the relevant time or whether it is pesticides, fungicides, etc., falling under entry 47 of the KGST Act. The Tribunal by majority held that the item is a petroleum product falling under residuary entry under entry 108(vi), which cannot be treated as fungicide or pesticide. We have gone the the order of the Tribunal and heard counsel appearing for the petitioner and Special Govt. Pleader appearing for the respondent. 2. We are unable to accept the contention of the petitioner that the item falls under entry 47 which provides for copper sulphate, pesticides, fungicides, insecticides, weedicides and plant protection chemicals other than those specifically mentioned elsewhere in the schedule taxable at the point of first sale in the state by a dealer who is liable to pay tax under Section 5 at 4%. The contention of the petitioner is that all spray oil can prevent fungus attack and therefore 2 it is fungicide. However, we do not think this argument is acceptable because generally spraying any oil on any item will probably prevent fungus attack. But oils which can prevent fungus attack cannot be called fungicides, which are products made exclusively to serve as fungicide which the petitioner's product is not. In fact spray oil is a commodity well known in the market and it is a petroleum product. By finance Act 2004 spray oil is brought as one of the items under petroleum products. However, until the introduction of spray oil specifically under the heading petroleum products, there is a residuary entry contained in entry 108(vi) which covers all other petroleum products not specifically provided therein. Since spray oil is generally a petroleum product, it falls under the residuary entry covering all other petroleum products not specifically mentioned in the Schedule. However, after passing of the Finance Act, 2004, the item falls specifically as one of the petroleum products mentioned in the entry. We therefore uphold the finding of the Tribunal that spray oil is not a fungicide as claimed by the petitioner. 3. Counsel for the petitioner has raised a specific contention that spray oil sold by the petitioner is not a petroleum product but it is an edible oil obtained from vegetable seeds. However, on going through the orders of the lower authorities including the assessment order, we do not find any details having been furnished by the petitioner such as seed from which it is produced. In fact in the 3 manufacturer's invoice copy of which is produced in Court it is written that manufacturer is engaged in petroleum specialities and not in edible oils. If the product is a vegetable oil then certainly the applicable rate for vegetable oil should be applied for the item sold by the petitioner, no matter the petitioner has called it by name spray oil. We leave freedom to the petitioner to produce purchase bills to show that items are produced from vegetable seeds and if such proof is produced the assessing officer will consider the genuineness of the claim by comparing the price of other vegetable oils and the purchase price shown therein and apply the appropriate rate, if necessary after getting sample analysed. This Revision case is disposed of by rejecting the petitioner's claim that item is fungicide. However, petitioner is given freedom to establish before the assessing officer that the item is made of vegetable oil for the officer to apply correct rate. If the petitioner does not prove before the officer that the item is vegetable oil within two months from the date of receipt of a copy of this judgment, then the assesment of the item as petroleum product will stand confirmed. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. kk