TaxTMI 
TaxTMI 
2008 (4) TMI 684
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....evy Rate of tax 104 Pressure cooker, cook-and-serve ware to keep food warm, casseroles, water filters and similar home appliances not coming under any other entry in this Schedule or in the Fifth Schedule. At the point of first sale in the State by a dealer who is liable to tax under section 5 12.5 per cent The reference to the Full Bench was made, because it was found that there was a divergence of opinion upon the question, one division Bench has held that aluminium non-stick wares such as "frying pan" and "dosa thava" are aluminium household utensils and therefore would come under entry 5 of the First Schedule to the KGST Act and another Division Bench has held that "satilon-coated aluminium products" are "similar house appliances" and therefore would fall under entry 104 of the First Schedule to the KGST Act. In T.R.C. Nos. 562 and 563 of 2001, in the judgment delivered on December 18, 2001(1), a Bench of this court has held "satilon-coated aluminium products" are classifiable under entry 104 of the First Schedule to the KGST Act and chargeable to sales tax at 12.5 per cent. The court has negatived the contention of the assessee that "satilon-coated aluminium products" are id....
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.... are non-stick wares which were not specifically included in the said two entries during the relevant period. We find that the Tribunal had observed that only vessels made wholly of aluminium and aluminium alloys will fall under entry 5. This view of the Tribunal, according to us, was not justified in view of the fact that even non-stick items are included under entry 5 at the relevant time provided the items are aluminium household utensils. From the findings of the first appellate authority, the items are only made of aluminium with a chemical coating which will not take the product out of the entry 5. We are in agreement with the view taken by the first appellate authority. The decision of the Division Bench of this court in T.R.C. No. 562 of 2001 has no application to the present case in view of the clear finding of fact entered by the first appellate authority that the item dealt with by the assessee is aluminium household utensil and the admitted position as could be seen from the assessment order that it is an aluminium household utensil." Arguments canvassed:-Our attention was drawn by Mr. C.K. Thanu Pillai, the learned counsel for the assessee, that, the assessee is a dea....
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.... these utensils are used has fixed the lower rate of tax at five per cent. For the purpose of commodity taxation this aspect may not be much relevant factor, but at the same time cannot be totally ignored. The item "non-stick cookware" though could be made of aluminium or aluminium alloy, in order to make it "non-stick" is coated with satilon both inside and outside the utensil. But the question is whether non-stick cookware could be equated with aluminium household utensil and whether this is acceptable to the commercial community as an aluminium domestic utensil. The word "household" is more or less equivalent to the word "domestic". The word "domestic" is defined in the Shorter Oxford Dictionary "as if or belonging to the home, house or household". The meaning of the word "utensils" as per the Concise Oxford Dictionary is instrument, implement especially one in domestic use, as kitchen, cooking or religious use. In common parlance, household utensils mean the domestic kitchen utensils. For the purpose of taxation, it is the predominant use which has to be taken in to consideration. The ordinary dictionary meaning of the word "utensil" is sufficiently wide to include any articl....
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....g the goods which are used as home appliances has specifically used the expression "similar home appliances" but not coming under any other entry. The expression "similar" is an important expression. It does not mean identical but it means corresponding to or resembling to in many respects; or having a general likeness. The statute does not contemplate that the goods classified under the words of "similar description" shall be in all respects the same. If it did, these words would be unnecessary. They were intended to embrace goods but not identical with those goods. The Revenue does not dispute that non-stick cookware is firstly made of aluminium alloy and also used as home appliance, but their contention appears to be that though non-stick cookware is made of aluminium alloy, its inside and outside is coated with satilon, firstly to make the food item prepared by using the non-stick cookware not to stick to the utensil and secondly to wash off the oil or grease easily from the utensil. A sales tax statute being one levying tax on goods, any particular term used to specify an item of goods on which tax is levied, must, not being a term of science or art, be presumed to have been ....
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....the view that mere chemical coating inside the utensils will not alter the position and the same will nevertheless remain aluminium household utensil. The issue therefore is, in spite of such coating, whether frying pan and dosa thava are aluminium household utensils, which could be classified under entry 5 of the First Schedule to the Act. At this stage, it may be necessary to look into the reasoning and conclusion reached by this court while holding the aforesaid items are aluminium utensils and therefore, it would be inappropriate to classify those items under entry 104 of the First Schedule to the KGST Act. The learned judges proceeded on the assumption that the expression "non-stick" was not there either under entry 5 or entry 104 of the First Schedule to the Act and therefore, merely because there was a chemical coating inside the utensil, it will not alter the position and the same will nevertheless remain household utensil. It is difficult for us to accept the reasoning of the court. In entry 104 of the First Schedule to the Act, the Legislature after enumerating certain goods which are household utensils, consciously uses the expression "similar home appliances" not falli....
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...." are made of aluminium and therefore the said items are household utensils. This finding of fact normally is not disturbed by the High Court while exercising its revisional jurisdiction, but, at the same time, if that finding of fact is wholly perverse, then it would be certainly a question of law and the revisional court can exercise its revisional power to correct that perverse finding. The first appellate authority having said that the commodities in question are made of aluminium did not give any finding whether coating of these items with the satilon chemical would take out these items from the entry, aluminium household utensils. Therefore, in our view, this court should not have been persuaded by the findings of the first appellate authority. The other reasoning of the learned judges is that, since entry 5 of the First Schedule deals with aluminium household utensils, the principle that special excludes general will also apply. There cannot be any dispute on this proposition of law. However, if there are two entries and one entry is broader and covers an entire class of goods, while the other entry covers some of the goods out of the said class, the latter entry should be....