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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

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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

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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.