STATE OF KERALA Vs. NARAYANAN NAMBIAR

JUDGEMENT

(1.) THE matter arises under the Kerala General Sales Tax Act, 1963 (for short'the Act' ). THE State is the revision petitioner in all the four cases. THE same assessee is the respondent in all the cases. THE assessment years concerned are 1989-90 to 1992-93. THE short question that arises for consideration in this case is as to whether 'disposable syringe' is a drug as contended by the assessee or 'plastic product' as contended by the revenue. This question has arisen only in the context of the rate of tax on'disposable syringe'. If the contention of the revenue is accepted the assessee is liable to pay a higher rate of tax (2% more) for all these years.

(2.) WE have heard the learned Government Pleader for the petitioner and the learned counsel for the respondent-assessee. In order to appreciate the rival contentions it is necessary to refer to the entries as it stood at the relevant time. Though there is some change in the respective item numbers and in the rate of tax the wordings of the respective entries are substantially the same. Hence we are extracting only the two entries as it stood during the assessment year 1989-90. It is the contention of the assessee that he had treated disposable syringe as a'drug' falling under entry 116 in view of the definition of 'drugs' in the Drugs and Cosmetics Act, 1940 and the Notification no. X. 11014/8/88-DMS&pfa dated 17. 3. 1938 issued under sub clause (iv) of clause (b) of S. 3 of the said Act which specifically provided that 'disposable hypodermic syringes' are drugs. The assessee had collected tax at the rate applicable to 'drugs' during the relevant assessment years and had remitted the same to the Government. The State wants the item disposable syringe to be assessed under item 145 of the First Schedule as article made of plastic.

(3.) AS already noted, the item dealt with by the assessee is disposable syringe. A general merchant dealing in plastic goods does not ordinarily deal in articles like disposable syringe. Though a part of the disposable syringe is made of plastics normally it is available only in a medical store or in a place where hospital equipments are sold. It is also not probable that a consumer would go to a plastic shop to purchase a disposable syringe. In the light of the decision of the Supreme Court discussed above, we have no doubt in our mind that disposable syringe dealt with by the assessee cannot be treated as an 'article of plastic' falling under entry 145 of the first Schedule to the Act.