V PADMANABHA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE short question for consideration in these tax revision cases (T. R. C. , acronym) which, for the sake of convenience, are disposed of by a common judgment, is whether refill is covered by entry 135 of the First Schedule, appended to the Kerala General Sales Tax Act, 1963, which is extracted below : " 135. Pens, pencils and fountain pens. "

(2.) THE contention of the Government Pleader is that refill is only a part of a ball pen, which by itself cannot be regarded as a pen. This contention was Special leave petition to the State against this judgment was granted by the Supreme Court on 4th September, 1998 in S. L. P. (Civil) Nos. 14089-14090 of 1998 : See [1998] 111 STC (JOURNAL) 7. accepted by a Full Bench of the Sales Tax Appellate Tribunal vide impugned order dated March 20, 1997. THE Tribunal found as follows : " (6) On a careful analysis of the fact we find that the entry 135 takes in its purview only pens, pencils and fountain pens. THE entry is found to be specific, categoric and is rendered exhaustive and exclusive. Refill is only a part of a. ball pen which by itself cannot be regarded as a pen as pen is constituted by different parts aria its identity is retained, any one of its part, however pivotal it may be, when separated cannot be treated as that commodity as the parts loose the identity and use of the parent commodity. Hence refill is only a part of a ball pen and hence it cannot be called a pen. Moreover refill is not designed for writing and the same is designed only as pail of a pen. In common parlance and commercial parlance also pen and refill are entirely different commodities with distinct and independent identities. . . . . . . . . . . . . . . .

(3.) REFILL being the only major component of the ball pen, we are of the view that the refill is not an ancillary of the ball pen but a major component of it and hence that can be regarded as a ball pen by itself.