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PETITIONER: SONIC ELECTROCHEM & ANR.

       Vs.

RESPONDENT: SALES TAX OFFICER & ORS.

DATE OF JUDGMENT:       11/08/1998

BENCH: S.P. BHARUCHA, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          THE 11 THE DAY OR AUGUST, 1998 Present:              Hon’ble Mr. Justice S.P. Bharucha              Hon’ble Mr. Justice G.B. Pattanaik Vivek Gambhir, Adv. for the appellants Ms. Hamantika Wahi, Adv. for the Respondents                       J U D G M E N T The following Judgment of the Court was delivered: PATTANAIK, J.      The short  question  that  arises  in  this  appeal  is whether JET  - MAT  produced by  the  appellant  would  come within Entry  129 of Schedule II Part A of the Gujarat Sales Tax Act,  1969 (hereinafter referred to as ’the Act’) issued under Section  49 of the Act. The said entry at the relevant point of time read thus: ------------------------------------------------------------ S.No. Description of goods  Rate of sales tax Rate of                             purchase tax ------------------------------------------------------------ 129   Mosquito     Twelve paise      Twelve paise in       Repellents   in the rupee      the rupee ------------------------------------------------------------      Though in  the High  Court appellant had challenged the validity of  Entry 129  of Schedule  II Part A of the Act on the ground  that it  violates Article 14 of the Constitution and the High Court negatived the same, the appellant in this appeal does  not challenge  the said  conclusion of the High Court. After  examining different  entries the High Court by the impugned  judgement came  to the conclusion that JET MAT is nothing  but a  mosquito repellent  within the  ambit  of Entry 129, and therefore, is taxable.      Mr. Salve  learned senior  counsel  appearing  for  the appellant contended  that the  JET MAT  manufactured by  the appellant is  an  insecticide  and  not  a  repellent  would therefore could  be exempted  from tax under entry 98 to the extent contained  therein and  the conclusion  of  the  High Court that it is a repellent and as such taxable under Entry 129 is  erroneous. In  support of  this contention Mr. Salve referred to the Certificate of Registration in favour of the appellant issued under Section 9(3) of the Insecticides Act,

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1968, the leaflet and the approved label of the commodity in question, the formulation contents of the said commodity and the chemistry  of the  active ingredients and submitted that all these  documents unequivocally  indicate the  product in question to  be an  insecticide. The  learned  counsel  also submitted that an exemption notification has to be construed broadly and  widely as  has been  held by  this Court in the case of  BOMBAY CHEMICAL  PVT. LTD.  V. COLLECTOR OF CENTRAL EXCISE, BOMBAY,  1995 Supp  (2) SCC  646,  and  consequently there would  be no  justification not to hold the JET MAT to be an  insecticide and  as such  exempted from levy of sales tax on  the sale  and purchase of the same under Entry 98 of the Act.  Mr. Salve  also in this connection placed reliance on a  decision of  the Madhya  Pradesh High  Court in  Misc. Petition No.  1452 of  1989, wherein the Madhya Pradesh High Court held  the product  to be an insecticide and a judgment of the  Orissa High  Court in  OJC No. 8126 of 1992, wherein the Orissa  High Court  took the view that the JET MAT was a pesticide and as such exempted under the notification issued under Section  6 of  the Orissa Sales Tax Act. Mr. Dholakia, learned senior  counsel appearing  for the respondent on the other hand  contended that  the product  of the appellant is nothing but  a mosquito repellent coming within the ambit of Entry 129 of the Act and a repellent does not cease to be so merely because  by its  action mosquitoes  are also  killed. According to Mr. Dholakia the High Court was fully justified in its  conclusion that  the  product  manufactured  by  the appellant comes within the ambit of Entry 129.      It may  be noticed  that prior to August, 1990, namely, before insertion  of Entry  129 the product in question with which we  are concerned  was being taxed under the residuary Entry 13  of Schedule  III of  the Act.   With  effect  from 1.8.1990 Entry 129 was inserted in Schedule II Part A of the Act and  a notification  was also issued under Section 49(2) granting partial  exemption  to  the  sale  or  purchase  of pesticides and  insecticides under Entry 98.  In view of the specific Entry  129 dealing  with mosquito  repellents it is difficult to  accept the  contention of  the learned counsel for the appellant that the product in question will not come within the  ambit of Entry 129 since one of its constituents ’d- Allethrin 4%’ happens to be an insecticide.  The product JET MAT  which is the trade name containing ’d-Allethrin 4%’ and is commercially known as ’Mosquito Repellent Mat’ in our considered opinion  is a  mosquito repellent notwithstanding the fact  that it not only repels the mosquitoes but also is capable of  killing the mosquitoes.  It is difficult to hold that it  is an  insecticide entitled  for partial  exemption under Entry  98 of  the Act.   In the Madhya Pradesh case on which Mr.  Salve relied  upon the question for consideration was whether  the product  in question is liable to Sales Tax at the  rate of  3% under Entry 18 of Part IV of Schedule II or at  the rate  of 12% under Entry 1 of Part VI of Schedule II.  Entry 18 of Part IV of Schedule II provided for levy of tax for  insecticides.   The other  competing entry, namely, Entry 1  of Part  VI of  Schedule II  has  not  been  quoted anywhere in  the judgment  nor has  it been discussed and on the other  hand the learned Judges have merely held that JET MAT could  be an  insecticide coming within Entry 18 of Part IV  of   Schedule  II.     In  the  Orissa  case  under  the notification issued  under Section 6 of the Orissa Sales Tax Act pesticide  was exempted  from levy  of sales tax and the question  for   consideration  was   whether  the  ’Mosquito Repellent Mat’  produced under  the trade  name of ’JET MAT’ containing  ’d-Allethrin   4%’  could  be  entitled  to  the exemption in  question.  The case of the Revenue was that it

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is an insecticide and not pesticide.  The court came to hold that  ’insecticide’   will  come   within   the   expression ’pesticide’ for the purpose of exemption.  The aforesaid two decisions dealing with different entries under two different Sales Tax  Acts can  have no  bearing  in  interpreting  the provisions of  Gujarat Sales  Tax  Act  with  which  we  are concerned in  the present  case.   In the  case in hand when Entry 129  clearly stipulates  that  Mosquito  Repellent  is taxable and the rate of tax has been provided therein and in view of  our conclusion  that  the  appellant’s  product  in question is  also a  Mosquito Repellent, we see no infirmity with the  impugned judgment  of the High Court requiring our interference.     The  appeal,  accordingly,  fails  and  is dismissed but in the circumstances there will be no order as to costs.