STATE OF KERALA Vs. M T ABOOBACKER

JUDGEMENT

(1.) THIS T. R. C. is filed by the State of Kerala against the decision of the Sales Tax Appellate Tribunal, Additional Bench, Ernakulam, in T. A. No. 479 of 2000. The facts of the case are as follows :

(2.) THE revision relates to the assessment year 1994-95. Assessee is a dealer in stainless steel kitchen sink. Dispute in this case relates to its rate of tax. According to the assessee, it would fall under entry 149 of the First Schedule to the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act") and according to the department, it would fall under entry 125 of the Act. If it falls under entry 125 of the Act, tax will be levied at 12. 5 per cent while if it falls under entry 149 of the Act, the tax will be levied at 10 per cent. THE assessing authority completed the assessment treating the stainless steel kitchen sink as an item falling under entry 125. Copy of the assessment order is produced as annexure A. THE first appellate authority confirmed the order. THE matter was taken before the Tribunal. THE Tribunal took the view that the above item would fall only under entry 149. In coming to the conclusion, the Tribunal placed reliance on a clarification issued by Centre for Taxation Studies.

(3.) ENTRIES 125 and 149 are as follows : --------------------------------------------------------------------- Sl. Description of Point of levy Rate of tax No. goods (per cent) --------------------------------------------------------------------- 125. Stainless steel rods At the point of first 12. 5% and sheets and sale in the State by stainless steel a dealer who is products liable to tax under section 5 149. Water supply and At the point of first 10% sanitary equipments sale in the State by and fittings, water a dealer who is liable meter, its spare to tax under parts and accessories section 5 --------------------------------------------------------------------- Learned Government Pleader brought to our notice a decision of this Court reported in N. R. Somasundaran Nair v. State of Kerala [1999] 112 STC 214; (1999) 7 KTR 55. The question there was with regard to the meaning of the words "sanitary fittings". Sanitary fittings are those which are meant for use in lavatories, urinals or bathrooms. Water storage tanks made of plastic as the common experience shows are not used only in lavatories, urinals and bathrooms. They are used even to store potable water and other purposes and therefore it cannot be said that water storage tank made of plastic are sanitary fittings within the meaning of entry 217. The word "sanitary" means the conditions that affect health especially with regard to dirt and infection, free from or designed to obviate influences deleterious to health. The word "sink" is a basin or box of porcelain, etc. , with outflow pipe, especially with water supply in kitchen, etc. , for washing up. According to us, the meaning has to be understood as in the common parlance. Kitchen sink is used mainly for washing vessels, etc. The Appellate Tribunal followed certain clarifications issued by the Centre for Taxation. It took the view that steel product is a general entry, while sanitary ware is a special entry and hence, steel sinks would come under sanitary fittings. Learned Government Pleader submitted that the view taken by the Tribunal is not correct. Counsel brought to our notice a judgment of the Supreme Court in State of U. P. v. Indian Hume Pipe Co. Ltd. [1977] 39 STC 355, wherein it was held that by sanitary fittings, we only understand such pipes or materials as are used in lavatories, urinals or bathrooms of private houses or public buildings. The Supreme Court reiterated the above observations in interpreting the Kerala General Sales Tax Act in the decision reported in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. G. S. Pai & Co. [1980] 45 STC 58 (SC); (1979) KLT 871, which are as follows : " '. . . . . . . . . sanitary fittings', according to the popular sense of the term, mean such pipes or materials as are used in lavatories, urinals or bathrooms of private houses or public buildings. The G. I. pipes sold by the assessee would, therefore, fall within the description of 'sanitary fittings' only if it can be shown and the burden of so doing would be on the revenue, that they were meant for use in lavatories, urinals or bathrooms. . . . . . . If the G. I. pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be 'sanitary fittings'. . . . . . . . Moreover, the words 'water supply. . . . . fittings' do not occur in isolation, but they are used in juxtaposition of the words 'sanitary fittings'. The entire expression 'water supply and sanitary fittings' is one single expression and the words 'water supply. . . . . fittings' must receive colour from the immediately following words 'sanitary fittings'. "