//
you're reading...
legal issues

Kerala General Sales Tax Act, 1963 – Entry 104 – Satilon/Tuflon coated cookware – Held: Classifiable under Entry 104 and not under Entry 5 – Such products cannot be treated as ordinary aluminium household utensils – Satilon/Tuflon coating makes the products non sticky and hence different from aluminium household utensil falling under Entry 5 – The amendment to Entry 104 in 1999 by which the word `non-stick’ cookware was added was merely clarificatory in nature. The questions which arose for consideration in these appeals were whether the satilon coated cookware and articles coated with tuflon are classifiable under Entry 5 of First Schedule under Kerela General Sales Tax Act, 1963 as `an aluminium household utensil made of utensil’ or whether these products would fall under Entry 104 which pertains to `pressure cooker, cook and serve ware to keep food warm, casseroles, water filters and similar home appliances not coming under any other entry’. The Assessing Authority classified the product under Entry 5. The Appellate Authority held that as the satilon coating made the goods non-stick, it would make it different from the aluminium household utensils made of aluminium covered under Entry 5 of the First Schedule. The Tribunal upheld the same. High Court held that the products were classifiable under the heading “similar home appliances” under Entry 104 of the Act and that the amendment to Entry 104 in the year 1999 by which the word “non-stick cookware” was added was only clarificatory in nature. Hence these appeals. =Dismissing the appeals, the Court HELD: 1.1. The view taken by the Tribunal as well as the High Court that “satilon coated aluminium products” are not identical with “aluminium household utensils made of aluminium and aluminium alloys” is correct. The coating of satilon makes all the difference to the product. The Tribunal rightly recorded a finding that in trade parlance, no one would describe satilon coated aluminium products as aluminium household utensils. [Para 5] [80-F] 1.2. The satilon coated cookware cannot be treated as ordinary aluminium household utensils. Price of the satilon coated cookware is much more than the aluminium household utensils made of aluminium and its alloys. The Hawkins cookware sold by the assessee cannot be categorized as household utensils made of aluminium for the reasons that the satilon coating makes the goods non-sticky and hence different from the aluminium household utensils. In common parlance, Hawkins cookware with satilon coating is not understood as aluminium ware. The view taken by the High Court that the amendment to Entry 104 of the First Schedule is clarificatory in nature is also correct. [Para 6] [80-H; 81-A-B] Gujarat Steel Tubes Ltd and Ors. v. State of Kerala and Ors. (1989) 3 SCC 127; Metlex (I) (P) Ltd. v. Commissioner of Central Excise, New Delhi (2005) 1 SCC 271; Commissioner of Central Excise, Cochin v. Apollo Tyres Ltd. (2005) 11 SCC 444 – distinguished. 2. Coating of tuflon also makes the article non-stick. [Para10] [81-G] T.L.V. Iyer, Gopal Jain, Kaushik Mishra, Bindu K. Nair, Sarika Singh, Ruby Singh Ahuja, K.R. Sasiprabhu, Krishan Venugopal, K. Varghese, Sidhartha, Naresh Kumar, G. Prakash, Beena Prakash, Varun Sarin (for Ramesh Babu M.R.) for the appearing parties.=, 2008(7 )SCR77 , , 2008(6 )SCALE657 , 2008(6 )JT237

Hawkins Cookers Limited

Image via Wikipedia

CASE NO.:


Appeal (civil) 6469-6470 of 2002

PETITIONER:
Hawkins Cookers Limited

RESPONDENT:
State of Kerala

DATE OF JUDGMENT: 29/04/2008

BENCH:
ASHOK BHAN & DALVEER BHANDARI

JUDGMENT:
J U D G M E N T
REPORTABLE

CIVIL APPEAL NOS. 6469-6470 OF 2002
With
Civil Appeal No. 7169 of 2004
Talent Marketing Agencies …..Appellant(s)
– Versus –
Additional Sales Tax Officer,
Ernakulam & Anr. …..Respondent(s)

Civil Appeal No. 1203 of 2008
Hawkins Cookers Limited …..Appellant(s)
– Versus –
State of Kerala ….Respondent(s)
BHAN, J.

1. This order shall dispose of Civil Appeal Nos. 6469-
6470 of 2002, 7169 of 2004 and 1203 of 2008.

Civil Appeal Nos. 6469-6470 of 2002 & 1203 of 2008

2. The issue which arises for consideration in these
appeals is, whether the satilon brand cookware sold by the
appellants is an “aluminium household utensil made of
aluminum” and “aluminium alloys” classifiable under Entry 5
of the First Schedule under the Kerala General Sales Tax
Act, 1963 (for short “the Act”) or whether the said product
would fall under Entry 104 which pertains to “pressure
cooker, cook and serve ware to keep food warm, casseroles,
water filters and similar home appliances not coming under
any other entry”.

3. The authority in original i.e. Assistant Commissioner
(Assessment III), Ernakulam at the first instance accepted
the appellant’s case and held that the Hawkins
Satilon Cookware manufactured by the appellant was
classifiable under Entry 5 of the First Schedule to the
Act. The Deputy Commissioner of Commercial Taxes in
exercise of his suo motu powers of revision, sought to
revise the assessment. A notice dated 10.9.1999 was issued
under Section 35 of the Act. Appellant replied to the said
notice. The Deputy Commissioner by an order dated
25.9.1999 set aside the earlier assessment and remanded the
matter for fresh disposal. The Deputy Commissioner held
that as the satilon coating made the goods non-stick, it
would make it different from the aluminium household
utensils made of aluminium, covered under Entry 5 of the
First Schedule. Aggrieved by the order passed by the
Deputy Commissioner, the appellant filed an appeal before
the Sales Tax Appellate Tribunal, Ernakulam (for short “the
Tribunal”). The Tribunal by its order dated 18.4.2001
upheld the order of Deputy Commissioner.

4. Against the order of the Tribunal, the appellant filed
Tax Revision case before the Kerala High Court, which has
been disposed of by the impugned order. The High Court by
a short order while agreeing with the findings recorded by
the Tribunal, dismissed the revision and held that the
products manufactured by the appellants were classifiable
under the heading “similar home appliances” under Entry 104
of the Act. It was further held that the amendment to
Entry 104 in the year 1999 by which the word “non-stick
cookware” was added was only clarificatory in nature. The
case of the appellant was that prior to the said amendment
of 1.4.1999 the appellant’s product would clearly fall
under Entry 5 and not under Entry 104.

5. We are in agreement with the view taken by the
Tribunal as well as the High Court that “satelon coated
aluminium products” are not identical with “aluminium
household utensils made of aluminium and aluminium alloys”.
The coating of satilon makes all the difference to the
product. The Tribunal has further recorded a finding that
in trade parlance, no one would describe satilon coated
aluminium products as aluminium household utensils.

6. We do not agree with the submission made on behalf of
the assessee that coating of satilon on the surface of the
metal product does not bring about any change in the nature
and utility of the product. By no stretch of imagination,
satilon coated cookware can be treated as ordinary
aluminium household utensils. Price of the satilon coated
cookware is much more than the aluminium household utensils
made of aluminium and its alloys. The Hawkins cookware
sold by the assessee cannot be categorized as household
utensils made of aluminium for the reasons that the satilon
coating makes the goods non-sticky and hence different from
the aluminium household utensils. In common parlance,
Hawkins cookware with satilon coating is not understood as
aluminium ware. We further agree with the view taken by
the High Court that the amendment to Entry 104 of the First
Schedule is clarificatory in nature.

7. Learned counsel for the appellant has relied upon the
following three judgments:

(i) Gujarat Steel Tubes Ltd and others v. State of
Kerala and others, 1989 (3) SCC 127

(ii) Metlex (I) (P) Ltd. v. Commissioner of Central
Excise, New Delhi, 2005 (1) SCC 271

(iii) Commissioner of Central Excise, Cochin v. Apollo
Tyres Ltd., 2005 (11) SCC 444

8. All these judgments are distinguishable on facts and
would have no applicability to the facts of the present
case. We have decided the point in issue on its own facts.
Under the circumstances, we reject the plea of the
appellants without adverting to the facts of the said
cases.

9. For the reasons stated above, the appeals are
dismissed.
Civil Appeal No. 7169 of 2004
10. In this case the product is slightly different in the
sense that the articles are coated with tuflon instead of
satilon. Coating of tuflon also makes the article non-
stick. Before the High Court the learned counsel, who had
appeared for the assessee, conceded that the point in issue
was squarely covered by the earlier decision of the High
Court of Kerala in W.A. No. 1405 of 2004 dated 4.8.2004,
which has been upheld by us today (Civil Appeal No. 6469-70
of 2002). No other point was urged.

11. Since we have upheld the order passed by the High
Court in the connected Civil Appeal Nos. 6469-70 of 2002,
we have no hesitation in dismissing this appeal as well.
The Orders passed by the High Court and the Tribunal are
upheld and the appeal filed by the appellant is dismissed.
No costs.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,897,103 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: