M/S RECKITT BENCKISER (INDIA) LTD. versus COMMISSIONER COMMERCIAL TAXES & ORS.

Citation: [2023] 4 S.C.R. 63 · Decided: 10-04-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Case Partly allowed
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[2023] 4 S.C.R. 63
63
M/S RECKITT BENCKISER (INDIA) LTD.
v.
COMMISSIONER COMMERCIAL TAXES & ORS.
(Civil Appeal No.1335 of 2010)
APRIL 10, 2023
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Kerala VAT Act, 2003 – s. 6(1)(d), Entry No.44(5)of the III
Schedule – Entry 27(4) and 66 of notification SRO 82/06 –
Appellant’s case that the products (i) Mosquito Mats, Coils and
Vaporizers; and (ii) Mortein Insect Killers; (iii) Harpic Toilet Cleaner
and Lizol Floor Cleaners were classifiable under Entry No. 44(5)
of the III Schedule to the Kerala VAT Act as being ‘pesticides,
insecticides’ corresponding to HSN Code 3808 and therefore subject
to VAT at the rate of 4% – With respect to the product at (iv) Dettol
Antiseptic Liquid, it was the case on behalf of the appellant that
‘Dettol Antiseptic Liquid’ is correctly classifiable under Entry 36(8)
(h) (vi) being medicaments corresponding to HSN Code 3004.90 of
the III Schedule, and thus also subject to tax at the rate of 4% –
Held: It is required to be noted that HSN Code 3808 has been deleted
from Entry 44(5) w.e.f. 01.07.2006 and from 21.01.2006 the aforesaid
products would fall under Sl. No.66 namely ‘Mosquito repellant’,
which is the specific entry and subject to VAT at 12.5% – Therefore,
Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers
products shall not be classifiable under Entry 44(5) as insecticides
– Further, after introduction of SRO 82/06 w.e.f. 22.01.2006 the
Harpic and Lizol would fall under Sl. No. 27(4) of SRO 82/06. Sl.
No.27(4) thus is a specific entry – What is required to be considered
is the dominant use which is cleaning and removal of stains of floor
and the toilet – Thereafter, the same shall not fall under Entry 44(5)
– HSN Code No.3808 as insecticides or disinfectant – Entry 27(4)
of SRO No. 82 of 2006 is with respect to stain busters, stain removers,
abir, blue and all kinds of cleaning powder and liquids including
floor and toilet cleaning – Therefore, Harpic and Lizol shall not be
classifiable under Entry 44(5) and shall be classifiable under Entry
27(4) of SRO 82/2006 chargeable to tax at 12.5% – As far as (iv)
Dettol Antiseptic Liquid is concerned, Dettol is used as an antiseptic
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
and is used in hospitals for surgical use, medical use and midwifery
due to therapeutic & prophylactic properties the same would fall
under Entry 36(8) (h) (vi) as claimed by the appellant.
Interpretation of Statute – Principles of classification which
are fundamental to any matter relating to classification under the
taxing statute are: (a) Plain meaning to be given to the taxing
provision; (b) burden to prove classification in a particular entry is
always on the Revenue; (c) any ambiguity has to be resolved in
favour of the assessee and in case of a reasonable doubt, the
construction most beneficial to the assessee must be adopted; (d)
specific entry would override a residuary entry; and (e) resort to
residuary entry is to be taken as a last measure, only when by liberal
construction the specific entry cannot cover the goods in question.
Partly allowing the appeal, the Court
HELD: 1. It is required to be noted that HSN Code 3808
has been deleted from Entry 44(5) w.e.f. 01.07.2006 and from
21.01.2006 the aforesaid products would fall under Sl. No.66
namely ‘Mosquito repellant’, which is the specific entry and
subject to VAT at 12.5%. The insecticides under Entry 44(5)
therefore can be said to be a general entry. Once there is a specific
entry the ‘Mosquito Repellant’, thereafter one is not required to
go to the definition under another Act namely Insecticides Act.
Sl.No.66 of Notification SRO 82/06 dated 21.01.2006 issued under
Section 6(1)(d) of the Kerala VAT Act which covers “Mosquito
Repellants”. [Para 9][74-H; 75-A-B]
2. It is required to be noted that Entry 44(5) which includes
insecticides relates to products operations. In the present case
under the KVAT Act there is a specific Entry Mosquito repellant
so far as the product electric or electronic mosquito repellents,
gadgets and insect repellents, devices and parts and accessories
therefore the thereof said are specific concerned entry shall and
be applicable in any case, the same cannot be said to be
insecticides. The view taken by the High Court is right that
Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers
products shall not be classifiable under Entry 44(5) as insecticides.
[Para 9.1][75-B-D]
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3. It
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