Kerala High Court
C.D. Rajan vs State Of Kerala And Ors. on 30 July, 1990
Equivalent citations: 1991(34)ECC99, [1990(60)FLR299], [1991]81STC330(KER)
JUDGMENT K. Sukumaran, J.
1. By Notification dated July 2. 1982, the Government clarified, among other things, that enamel ware (made of steel sheets and covered with enamel coating for domestic purpose) would come under entry 45 of the First Schedule. That was, however, changed by the Government when it issued exhibit P2 dated April 23, 1984. The Government took the view that enamel iron utensils would come under entry 121 of the First Schedule. This view is challenged in the original petition.
2. There are contentions which are directed against the very constitutional validity of Section 59A.
3. Other contentions need not be enquired into, if, on a proper interpretation of the entry, we come to the conclusion that the interpretation given by the Government is correct.
4. The petitioner is dealing in enamel ware and, according to him, they are made of steel covered with enamel coating. The details of the manufacturing process involved in enamelled articles are given in paragraph 5. According to the petitioner, they will not come within the term "metallic products". The two entries may be extracted for facilitating a comparative study. They read as follows :
Sl. No. Description of goods Point of levy Rate of tax 45 Iron and steel articles, not mentioned elsewhere in this Schedule or the Second Schedule. At the point of first sale in the State by a dealer who is liable to tax under section 5.6 121
All metallic products (or articles made of iron or steel in combination with other metals) other than those specified elsewhere in this Schedule or the Second Schedule. At the point of first sale in the State by a dealer who is liable to tax under section 5.8
5. Literature is available about enamel, its history, its ingredients, its manufacturing process and its utilities. Encyclopaedia Britannica deals with it at pages 773 to 779 in Volume 6 of its 15th Edition. It refers to the fact that most type of metals have been, at one period or other of history, enriched with enamelled decoration. The passage at page 774 gives the details of materials and techniques. The process of manufacturing powdered enamel is thereafter detailed. The metal, on which the powdered enamel is to be spread, is cleansed by immersion in acid and water. After spreading the wet enamel powder in the metal, it is allowed to dry in front of the furnace before it is carefully introduced into the muffle of the furnace, where it is heated to the point at which it fuses and adheres to its metal base. The process is referred to as the firing of enamel. That takes only a few minutes. The article is then withdrawn and allowed to cool. Similar details are available from the Encyclopaedia Americana, Volume 10, page 311.
6. Having regard to the details of its ingredients and the process which undergoes before emerging as enamel ware, we are of the clear opinion that it will come within the term "metallic product" as contained in entry 121. If it comes under the first limb of that entry, namely, metallic products, it is unnecessary to consider whether it may also come under the subsequent limb. Entry 45 deals with iron and steel articles. It is difficult to conceive of enamel ware as iron and steel articles. They will be pushed out of entry 45, if they come under any other entry in the Schedule. As already noted above, these articles squarely come within the first limb of entry 121, namely metallic product.
7. Counsel relied on the decision of the Supreme Court in Gujarat Steel Tubes Ltd. v. State of Kerala [1989] 74 STC 176, which took the view that galvanised pipes continued to retain the identity as tubes or pipes notwithstanding the application of zinc, for the purpose of making it resistant to rust. That analogy, however, is unavailable in the case of metal sheets and enamel ware. It is not merely a case of the metal sheets being protected or insulated for the purpose of preservation. A totally new glossy, and sometimes artistic commodity, emerges after the process referred to above. It is then not possible to treat it as yet another iron or steel article with a modicum of coating to make it preservable. We hold that it comes within entry 121. Consequently, the opinion given by the Government, as distinct from that of the Board of Revenue, has to be upheld as a correct one. De hors the determination under Section 59A, the view taken by the Government is sustainable. In that view of the matter, the substantial reliefs sought for by the petitioner, cannot be granted. The contentions are devoid of substance in the light of the discussion above. Consequently, the writ petition fails and it is accordingly dismissed but without any order as to costs.