Kerala High Court
State Of Kerala vs Vazhakkala Agencies on 9 March, 2006
Equivalent citations: 2006(2)KLT44, [2006]148STC576(KER)
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K.T. Sankaran
JUDGMENT K.S. Radhakrishnan, J.
1. The question that is posed for consideration in this case is whether LDPE (Low Density Poly Ethylene) transparent film comes under Entry 91 of the First Schedule or under Entry 101 as plastic products to be taxed at 10%.
2. Assessee is a dealer in pesticides, rubber chemicals etc. at Kottayam. Assessment year in question is 1995-96. Assistant Commissioner (Assessment) Special Circle, Kottayam levied tax at 10% on the sale of LDPE transparent film and denied the reduced rate of tax as per SRO 1541/1993 on the sale of silicon dioxide etc. Assessee took up the matter in appeal before the Appellate Tribunal. Tribunal was called upon to consider the question whether LDPE transparent film used for packing sold by the assessee is a material used for the purpose of packing and coming under Entry 91 of the I Schedule to the Kerala General Sales Tax Act, 1963 and not under Entry 101. Assessing authority and the appellate authority have taken the view that it would not come under Entry 91 of the First Schedule which was negatived by the Tribunal. Before examining the question we may extract Entry 91 and Entry 101, for easy reference.
Entry 91:
Packing cases and packing materials At the point of first sale including cork, cork sheet, gunny bags in the State by a dealer shocks, tea chests, waste paper, wooden who is liable to tax under S.5 boxes, wooden shavings, wooden crates, wooden cable, drum or other materials notified by the Government in this behalf. Entry 101: Plastics and articles of -do- plastics including PVC pipes, plastic paper, cellophane, polythene, polyurethene, polythelene, polyster, whether expanded or not, polysterene foamated sheet, sun control polyster film, polyster tracing and drafting film, polyster self adhesive insulation tapes, fibre reinforced plastics not coming under any other entry in this schedule or in the fifth schedule.
Entry 91 relates to first point of levy on packing materials and the rate of tax is 5%. Under Entry 101 rate of tax on plastics and articles of plastics is 10%. A reading of the above entries would show that packing materials would fall under Entry 91. Entry 91 has used the expression including which is intended to rope in all packing materials. LDPE is generally known as a packing materials in industrial and commercial circles. Being a packing material it would fall under Entry 91. It cannot be termed as plastic or any other article of plastics. It is not polythene as such. It is manufactured as a packing material. Since it is a packing material, Tribunal is justified in holding that the same would fall under Entry 91 of the First Schedule and therefore taxable only at the rate of 5%. The revision therefore lacks merits and the same would stand dismissed.