TaxTMI 
TaxTMI 
2018 (7) TMI 1767
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....nic substance coming under Entry 17 of III Schedule of the Kerala General Sales Tax Act, 1963 (for short 'the Act'). 2. Following are the questions of law raised in this case: A) Has not the Tribunal grievously erred in holding that the product 'ecohume' of the assessee is an organic manure coming under Entry 17 of the schedule III of the KGST Act ? B) Is not the reliance placed by the Tribunal on Annexures-D to F without reference to the Entries under the KGST Act as also the facts and circumstances of the case, perverse ? C) Ought not the Tribunal have held that the product 'Ecohume' of the assessee should be classified under Entry 47 of Schedule I to the KGST Act ? 3. Exemption was claimed by the asses....
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..... 4. The learned Senior Government Pleader appearing for the Revenue argues that the Tribunal went wrong in finding that the product is an organic manure, because even according to the assessee the product is a 'bio pesticide' and therefore, exemption under Entry 17 of Third Schedule of the Act could not have been granted, and that the product would come under entry 47 of First Schedule. Entry 17 reads as thus: "17. Cow dung, wood ash, poultry manure, green manure, compost, town compost, fish manure and organic manure, (including neem cake and crushed neem fruit) other than those specifically mentioned in the first schedule. Explanation:- The term 'Organic Manure' referred to in this Entry shall mean only the manure produ....
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....dusthan Ferodo Ltd v. Collector of Central Excise, Bombay (1997) 2 Supreme Court Cases 667, it was argued that onus of establishing that the product fell within a particular item of classification lies on the Revenue. It is stated that the revenue has not adduced any evidence to prove that the disputed product falls within Schedule I. We cannot agree with the learned counsel on this. Hindusthan Ferodo Ltd. was a case in which the intermediate products in the manufacture of brake linings and clutch facings, being rings punched from asbestos boards and two types of asbestos fabrics were sought to be brought under Central Excise Tariff under Entry 22F as "asbestos fibres and yarn". The manufacturer claimed that these intermediate products are ....
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....eated; fertilizers produced by the mixing or chemical treatment of animal or vegetable products." 8. It has to be understood that the scope and purpose of Entry 17 in III Schedule of the Act read together with the Explanation cannot be found analogous to Entry 31.011 of the Central Excise Tariff Act. No where in Annexure F order has it been held that 'Ecohume' is an 'organic manure' so as to import the finding to the requirement of Entry 17 read with the explanation. For the purpose of Central Excise Tariff Act what was required to be proved was that it is an animal or vegetable fertilizer, whether or not mixed together or chemically treated. But the scope of Entry 17 of III Schedule, especially in view of Explanation to En....
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....on. 9. A similar question came up for consideration before the Division Bench of this Court in Nelkadir Bone Industries v. Commercial Tax Officer, 2013 (2) KLT 477, wherein the question that arose was whether the legislature was justified in including bone meal, under the head fertilizer in Entry 57(V) of the I Schedule to the Act instead of showing the same as organic manure in Entry 17 of third schedule of the KGST Act, and whether it is arbitrary and unreasonable and liable to be declared as organic manure entitled for exemption. It was held thus: "Further, the organic manure enumerated in Entry 17 of the third schedule are the crude form of manure obtained in a natural manner with less manufacturing technique, and used as such in the ....
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....plants. A reading of Entry 17 of III Schedule shows that various items, including organic manure other than those specifically mentioned in the I Schedule are included therein. For a particular manure to qualify as an organic manure, the manure shall be produced or derived naturally from plants or animals or from both. The production or derivation of manure from plants or animals or from both has to be by means of a natural process. There cannot be an intervention of any mechanical or other unnatural aka chemical process in the production of a manure to qualify it to be an organic manure for the purpose of Entry 17 of the III Schedule unless specifically included as in the case of Neem cake or crushed neem fruit. 'Ecohume' is not ta....