2009 (3) TMI 554

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.... aerosols, liquids/refills, etc., which are used for driving away and destroying mosquitoes. The appellant is an assessee under the Kerala Value Added Tax Act, 2003 (for short, "the Act"). The assessment year in question is 2005-06. The State of Kerala, by notification being SRO No. 82 of 2006 dated January 21, 2006, notified the list of goods specified therein to be taxable at the rate of 12.5 per cent. Item No. 66 of the said notification reads as under: Sl. No. Description of goods HSN Code (1) (2) (3) 66 Mosquito repellents, electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof. 8516.79.20 According to the appellant, in this case section 6(1)(a) of the Act w....

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....HSN Code which was applicable during the said assessment year; relevant portion whereof reads as under: "3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles, and fly-papers)" Indisputably, the Act provides for the Interpretative Rules, the relevant portion whereof reads as under: "The commodities in the Schedules are allotted with code numbers, which are developed by the International Customs Organization as Harmonised System of Nomenclature (HSN) and adopted by the Customs Tariff Act, 1975. However, there are certain ....

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....ommodities under that heading excluding that commodity for which the eight-digit numbers are given. Similar cases are available in the case of six-digit numbers also. In such cases the above principle shall apply mutatis mutandis." The appellant contends that if the said entry, viz., 3808 of the Customs Tariff Act is read with entry 66 of the notification, it will be evident that the same is distinct and different from the item which is at serial No. 66 of the notification being HSN Code 8516.79.20. However, the contention of the Revenue, on the other hand, is that as the language employed in the notification itself is clear and unambiguous, it is not necessary to refer to the HSN at all. The appellant was assessed for the said assessmen....

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....ssment year 2005-06, pending disposal of the W.P. (C); and (v) to grant such other and further reliefs as this honourable court may deem fit and proper in the facts and circumstances of the case, including the cost of this proceeding to the petitioner." By reason of the impugned judgment, the High Court, however, refused to entertain the said writ petition opining that the appellant has alternative remedies available to it as an appeal against the order of assessment was maintainable. Mr. Tyagi, the learned counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in refusing to entertain the writ petition as the validity of the notification was in question which could not have been determine....