M/S. GODREJ SARA LEE LTD. versus ASSISTANT COMMISSIONER (AA) & ANR.

Citation: [2009] 4 S.C.R. 1183 · Decided: 18-03-2009 · Supreme Court of India · Bench: S.B. SINHA, MUKUNDAKAM SHARMA, RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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[2009] 4 S.C.R 1183 
MIS. GODREJ SARA LEE LT[). 
v. 
ASSISTANT COMMISSIONER (AA) & ANR. 
Civil Appeal No. 1888 of 2009 
MARCH 18, 2009 
[S.B. SINHA, DR. MUKUNDAKAM SHARMA AND R.M. 
LODHA, JJ] 
CONSTITUTION OF IND/A, 1950: 
A 
B 
Article 226 -
Writ petition by assessee challenging C 
Notification SRO No. 8212006 issued by State Government of 
Kera/a notifying mosquito repel/ants to be taxable at the rate 
of 12.5% as ultra vires the KVAT Act-High Court declining to 
entertain the writ petition on the ground of alternative remedy 0 
by way of appeal - HELD : It is true that the petitoner in its writ 
petitions, has not made a specific prayer that the Notification 
dated 21st January 2006 was ultra vires or otherwise illegal 
but, a specific ground in that behalf was taken- Even otherwise 
the question as to whether the said Notification could have a E 
retrospective effect or retroactive operation, being a 
jurisdictional fact, should have been determined by the High 
Court in exercise of its wirt jurisdiction under Article 226 as it 
is well know that when an order of a statutory authority is 
questioned on the ground that the same suffers from lack of F 
jurisdiction, alternative remedy may not be a bar- This is a fit 
case where High Court should have entertained the writ petition 
- Order of High Court is set aside - Petitioner be permitted to 
amend the prayer portion of the writ petition: 
Whirlpool Corporation v. Registrar Trade Marks, Mumbai G 
& Ors. (1998) 8 SCC 1; and Committee of Management & 
Anr v. Vice Chancellor & Ors. 2008(16) SCALE 310 - relied 
on. 
1183 
H 
1184 
A 
SUPREME COURT REPORTS 
Case Law Reference 
(1998) 8 sec 1 
relied on 
2008(16) SCALE 310 
relied on 
[2009] 4 S.C.R. 
para 17 
para 17 
B 
CIVILAPPELLATE JURISDICTION: Civil Appeal No.1888 
of 2009 
c 
D 
From the Judgement and Order dated 18.12.2007 of the 
High Court of Kerala at Ernakulam in Writ Petition (Civil) No. 
32246 of 2007. 
Rajiv Tyagi, Chanchal Biswas, Vikas Mishra, for the 
Appellants. 
M.L. Varma, R. Salish, with him for the Respondents. 
The following Order of the Court was delivered 
1. Leave granted. 
2. Appellant is manufacturer of coils, mats, aerosols, 
liquids/refills etc. which are used for driving away and destroying 
E 
mosquitoes. Appellant is an assessee under the Kerala Value 
Added Tax Act, 2003 (for short, 'the Act'). The assessment year 
in question is 2005-06. 
3. The State of Kerala, by Notification being SRO No.82/ 
F 
2006 dated 21st January 2006, notified the list of goods 
specified therein to be taxable at the rate of 12.5%. Item no.66 
of the said Notification reads as under : 
SI.No. 
Description of Goods 
HSN Code 
G 
( 1) 
(2) 
(3) 
66 
Mosquito repellents. electric or 
8516.79.20 
electronic mosquito repellents, 
gadgets and insect repellents, 
devices and parts and accessories 
H 
thereof. 
+ 
M/S. GODREJ SARA LEE LTD. V 
1185 
ASSISTANT COMMISSIONER (AA) & ANR. 
4. According to the appellant, in this case Section 6(1 )(a) A 
of the Act would be applicable, the relevant portion whereof 
reads as under: 
"6. Levy of tax on sale or purchase of goods.-(1) Every 
dealer whose total turnover for a year is not less than ten 8 
lakhs rupees and every importer or casual trader or agent 
of a non-resident dealer or dealer in jewellery of good, 
silver and platinum group metals or silver articles or 
contractor or any State Government, Central Government 
or Government of any Union Territory or any department 
thereof or any local authority or any autonomous body, C 
whatever be his total turnover for the year, shall be liable 
to pay tax on his sales or purchases of goods as provided 
in this Act The liability to pay tax shall be on the taxable 
turnover,-
(a) in the case of goods specified in the Second and Third 
Schedules at the rates specified therein and at all points 
of sale of such goods within the State ............ . 
D 
(c) in the case of transfer of the right to use any goods for 
any purpose whether or not for a specified period, at the E 
rate of four per cent at all points of such transfer. 
5. The Revenue, however, contends that Section 6(1 )(d) 
shall apply. Clause (d) of sub-section (1) of Section 6 reads 
thus: 
"(d) in the case of goods not falling under clauses (a) or 
(c) at the rate of 12.5% at all points of sale of such goods 
within the State Government may notify a list of goods 
taxable at the rate of 12.5%;" 
F 
6. Our attention has also been drawn to Entry 3808 of G 
Cha
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