MAHENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The question to be considered in all these Writ Petitions is whether mosquito repellent mats manufactured by the petitioners in the name "Good Knight" and "Banish" can be classified as insecticides for the purpose of levying sales tax under the Kerala General Sales Tax Act. The above mat is made up of paper pulp impregnated with the base Insecticide Chemical Allethrin Technical (4%) which is volatile at specified temperature without decomposition. When placed on the EMD heater the base chemical evaporates and suffuses the atmosphere proximate. The allethrin fatally affects the mosquitoes by causing irreparable damage to their nervous system and thereby causing death. Till 1.4.1991 there was no specific classification for the mosquito repellent. In 1.4.1991 the above was classified as under 123B under the heading "Mosquito Repellent". From 1.4.1992 it was classified under item 85. Therefore, from 1.4.1991 there is no dispute about classification or tax payable or the rate of tax payable with respect to the mosquito repellent mat.

(2.) Before 1.4.1991, mosquito repellent bar was not specifically classified. Petitioners claimed that it will come under Entry 87 which reads as follows:

(3.) The Madras High Court considered the very same question in the decision in Transelektra Domestic Products Pvt. Ltd. v. Commercial Tax Officer, Porur Assessment Circle, Madras ((1993) 90 STC 436) and held that it can be classified as an insecticide and cannot be taxed as a general item liable to tax at multi point rate. A similar view was expressed by the Sales Tax Appellate Tribunal, West Bengal. It is also submitted that in Maharashtra and Gujarat this is classified as an insecticide either till specific entry was introduced. According to the petitioners, the allethrin fatally affects the mosquitoes by causing irreparable damage to their nervous system and thereby causing death. Petitioner had applied for and was granted licence to manufacture insecticides in Form No. V and these goods are manufactured under Certificate issued under S.9(3) of the Insecticides Act. Copies of the licence and Registration Certificate issued were also produced in the Original Petition. These goods are covered by the provisions of the Insecticides Act and these goods can be classified in a specific entry and cannot be included in unclassified items. When we can attach a parentage to a product it need not be sent to orphanage, that is residuary entry as held by the Supreme Court in Dunlop India Ltd. v. Union of India and Others 1976 (2) SCC 241 . Since the mosquito repellent mat contains insecticide allethrin chemicals, which is manufactured and sold under licence issued under the Insecticides Act and it will fatally affect the nervous system of mosquitoes, we are of the opinion that it can be classified as an insecticide till it was specifically classified from 1.4.1991 onwards. Government specifically classified mosquito repellent mat as coming under Entry 123(b) from 1.4.1991 under item 85 from 1.4.1992 making it a single point rate.