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CASE NO.: Appeal (civil)  2274 of 2007

PETITIONER: M/s Sree Durga Distributors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 30/04/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CIVIL APPEAL No. 2274     OF 2007 (arising out of Special Leave Petition (C) No. 3190/07)

KAPADIA, J.                  Leave granted.

       A short question which arises for determination in this  civil appeal is whether ’dog feed’ and ’cat feed’ sold by the  appellant-assessee attracts Nil rate of duty under Entry 5 of  First Schedule of the Karnataka Value Added Tax Act, 2003  (hereinafter referred to as "the Act"). The said entry was  inserted vide Karnataka Act No. 27/05 with effect from  7.6.2005.        We quote hereinbelow Entry 5 of First Schedule of the  Act:

"5.     Animal feed and feed supplements,  namely, processed commodity sold as poultry  feed, cattle feed, pig feed, fish feed, fish meal,  prawn feed, shrimp feed and feed supplements  and mineral mixture concentrates, intended  for use as feed supplements including de-oiled  cake and wheat bran."

       According to the appellant, dog feed and cat feed are the  products which would fall in the category of animal feed under  Entry 5. According to the appellant, Entry 5 deals with animal  feed, feed supplements, namely, processed commodity sold as  poultry feed, cattle feed, pig feed, fish feed, fish feed, fish meal,  prawn feed, shrimp feed, feed supplements and mineral  mixtures. According to the appellant, the words; poultry feed,  cattle feed, and pig feed etc. are the specific instances of food  supplements. According to the appellant, the word ’namely’  after the words ’feed supplements’ in Entry 5 shows that the  Legislature intended the words ’feed supplements’ to be  confined to poultry feed, cattle feed, pig feed, fish feed, fish  meal, prawn feed and shrimp feed. In other words, according  to the appellant, animal feed and feed supplements are two  expressions in Entry 5 which should be read disjunctively and  not conjunctively. It is submitted that each of the aforesaid  three categories of goods covered by Entry 5 is quite complete  and independent in itself. That, meaning of the expression  "and" appearing between first category and second category  and between second category and third category is that in  addition to first category, goods of second category and third  category are also covered by the said entry. The aforesaid three

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categories of goods are all for feeding the animals and these  have all been put under the said entry. Since the entry covered  three categories of goods, in between each category the  expression "and" was used to make it clear that in addition to  first category, second category is also covered and in addition  to second category, third category is also covered. The word  "and" has been used in the sense of "also" or "as well as". It is  further submitted that each of the three parts of Entry 5  mentioned above are quite independent of each other. Each  part is complete by itself and is capable of operating  independently. Thus, for instance, the first part covering  animal feed is a complete and stand alone item capable of  operating independently. Similar is the position in respect of  second part and third part of the entry. None of these three  parts depend upon each other in any way. It is further  submitted that the punctuation mark "comma" (,) has been  used in the said Entry 5 in-between different items covered by  each individual category. Thus, the second category covers  "feed supplements, namely, processed commodity sold as  poultry feed, cattle feed, pig feed, fish feed, fish meal, prawn  feed, shrimp feed and there is a comma preceding and after  the word "namely" which qualifies the expression "feed  supplements". With reference to use of expression "namely" in  Entry 5 and its effect, the submissions is: that the said  expression "namely" has been used in the second category of  goods covered by the entry. It has been used after "feed  supplements" and its effect is that feed supplements covered  by the entry are processed commodity sold as poultry feed,  cattle feed, pig feed, fish feed, fish meal, prawn feed and  shrimp feed; that the said word "namely" does not in any way  qualify or relate to the goods of first category and third  category. Animal feed is covered by first category and it is a  stand alone item and this category is quite independent and  capable of operating by itself and independently. That, if the  expression "namely" is held to qualify even "animal feed"  covered by first category, then all conditions and restrictions  mentioned in the entry for the goods of second category will  also become applicable to animal feed. In that event, the scope  of the expression "animal feed" will also be curtailed  substantially to confine it to processed commodity alone and  that too for some named animals only. Animal feed may be of  different types and varieties. Frozen variety of animal feed is  often limited to raw meat or sea food where little or no  preparation is needed. It is further submitted that there is no  warrant or justification for reading the entry in such a way so  as to limit or restrict the scope and ambit of the first category  which is a stand alone category covering "animal feed". The  said expression "animal feed" as used in the entry is totally  unqualified and unrestricted and it covers all types and  varieties of animal feed.

We do not find any merit in the arguments. The above  quoted Entry 5 shows that animal feed and feed supplements  is one category. It is after the expression "animal feed and feed  supplements" that the Legislature has inserted the comma,  therefore, animal feed and feed supplements constitute one  class of products, they do not constitute two separate classes.  Further, the expression "animal feed and feed supplements" is  not only followed by the comma, it is followed by the word  ’namely’, which indicates that the items mentioned after the  word ’namely’  like poultry feed, cattle feed, pig feed, fish feed  etc. are specific instances of animal feed and feed  supplements, which would fall in Entry 5. That list is  exhaustive. In that list, the Legislature has not included dog  feed/cat feed, therefore, the products of the appellant do not

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fall under Entry 5 of the First Schedule of the Act. In our view,  the basic premise on which the arguments of the assessee  proceeds is that Entry 5 covers three categories of goods,  namely, animal feed, feed supplements and feed supplements  and mineral mixtures. This premise is wrong. A bare reading  of the said entry indicates ’animal feed and feed supplements’  as constituting one category. They are not two separate  categories. The punctuation mark "comma" has been used  expressly after the words "animal feed and feed supplements",  which indicates that the Legislature intended to classify these  two items as one class/category. Further, the Legislature  intended to restrict that category by confining that category to  processed commodity alone and that too for certain named  animals. In the present case, we are concerned with cat feed  and dog feed. Cat feed carries a fishy smell on account of  processing. However, cat feed though processed is not put in  Entry 5. Similarly, dog feed is also excluded from Entry 5.  In  the circumstances, we do not find any merit in the arguments  advanced on behalf of the assessee.

Before concluding, we may refer to the judgment of this  Court in the case of Vidyacharan Shukla  v.  Khubchand  Baghel and Ors. reported in AIR 1964 SC 1099 on which  reliance has been placed by the assessee. In that case Section  29(2) of the Limitation Act, 1908 came for interpretation. One  of the questions which arose for determination in that case  was whether Section 29(2) would apply to a case where there  was a difference in the period of limitation prescribed by the  Representation of the People Act, 1951 ("RP Act") and the  Limitation Act, 1908. We quote hereinbelow Section 29(2) of  the Limitation Act, 1908: "Where any special or local law prescribes  for any suit, appeal or application a period of  limitation different from the period prescribed  therefor by the first schedule, the provisions of  section 3 shall apply, as if such period were  prescribed therefor in that schedule, and for  the purpose of determining any period of  limitation prescribed for any suit, appeal or  application by any special or local law \026"                                  (emphasis supplied)

It was held that RP Act, 1951 was a special law. It was held  that the period of limitation prescribed under the RP Act, 1951  was different from the period prescribed under the Limitation  Act. The question before this Court was whether for the  purposes of computing the period of thirty days prescribed  under Section 116-A(3) of the RP Act, 1951, the provisions of  Section 12 of the Limitation Act, 1908 could be invoked. It was  held that Section 29(2) of the Limitation Act, 1908 would apply  even to a case where the period prescribed under the special  law differed from the period prescribed under the Limitation  Act (see para 23). Alternatively, even on construction of  Section 29(2) it was held that there was no rule of grammatical  construction which required an interpretation that if  sentences complete by themselves are connected by a  conjunction, namely, the word ’and’, the second sentence  must be held to limit the first sentence. In our view, the said  judgment has no application. In the present case, the word  ’and’ in Entry 5 is placed between the words "animal feed" and  "feed supplements" followed by a punctuation mark "comma".  Therefore, we are not concerned with a case where two  sentences are sought to be connected. We are concerned with  specific category of goods. The word ’and’ is placed by the  Legislature between two types of goods, namely, animal feed

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and feed supplements. The punctuation mark, after  categorizing "animal feed and feed supplements", as one class,  is very important. The Legislature intended, therefore, to put  "animal feed and feed supplements" in one category. The  Legislature intended to provide for Nil rate of duty to specified  items mentioned in Entry 5. Dog and Cat feed are not  mentioned in those items. Therefore, the above judgment of  this Court has no application to the present case.

       For the above reasons, we do not find any infirmity in the  impugned judgment of the High Court and accordingly, we  dismiss this civil appeal with no order as to costs.