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2000 DIGILAW 184 (KER)

Deputy Commissioner (Law), Commercial Taxes, Ernakulam v. Diplomat Plastics Private Limited

2000-03-23

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

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Judgment :- ARIJIT PASAYAT, C.J. These four applications have been filed by the Revenue under section 41 of the Kerala General Sales Tax Act, 1963 (in short, "the Act"), read with rule 41(1) of the Kerala General Sales Tax Rules, 1963 (in short, "the Rules"), questioning correctness of conclusion arrived at by the Kerala Sales Tax Appellate Tribunal, Additional Bench, Ernakulam (in short, "the Tribunal"). By the impugned order, which relates to four assessment years, i.e., 1989-90, 1990-91, 1991-92 and 1992-93, Tribunal held that PVC fittings - elbows, tees and couplings are covered under item 145/101 of the First Schedule to the Act and not under item 217/149 of the said Schedule. Revenue's stand is that PVC fittings - elbows, tees and couplings are covered by item 217/149 as "water supply and sanitary equipments and fittings". Stand of the assessee is that the articles in question fall under item 145/101 relating to "plastics and articles of plastics". It is to be noted that for the first three assessment years in question the relevant item in the First Schedule was, according to the Revenue, item 217 while according to the assessee, it is item 145. For the last year, i.e., 1992-93 the item is 149, according to the Revenue, and 101 according to the assessee. For the assessment years 1989-90, 1990-91 and 1991-92 item 145 read as "plastics and articles made of plastics including plastic pipes". For assessment years 1992-93 the entry read as follows : "Plastic and articles of plastic including PVC pipes, plastic paper, cellophane, polythene, polyurethane, polythelene, polyester, whether expanded or not, polysterene foamatted sheet, sun control polyester film, polyester 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."For the assessment years 1989-90 to 1991-92 entry 217 read as "water supply and sanitary equipments and fittings". For the assessment year 1992-93 it reads as follows : "Water supply and sanitary equipments and fittings, water meter, its spare parts and accessories". Learned counsel for the Revenue submitted that the approach of the Tribunal was erroneous. The articles in question are used along with PVC pipes which constitute water supply and sanitary equipments and therefore the Revenue's stand should have been accepted by the Tribunal. Learned counsel for the Revenue submitted that the approach of the Tribunal was erroneous. The articles in question are used along with PVC pipes which constitute water supply and sanitary equipments and therefore the Revenue's stand should have been accepted by the Tribunal. Learned counsel for the assessee on the other hand, submitted that PVC pipes are not only used as water supply or sanitary pipes. They have diverse utilities and uses. They are also used as pipes for electrical connections and therefore on the basis of the specific entry 145/101 as the case may be view of the Tribunal was justified. So far as the expression "sanitary fittings" is concerned, the apex Court in State of U.P. v. Indian Hume Pipe Co. Ltd. 1977 39 STC 355 held that "sanitary fittings" according to the popular sense of the term, mean such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. The expression "fittings" suggests that it refers to articles or things which are fitted or fixed to the floor or walls of a building and they may in a given case include even articles or materials fitted or fixed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the sceptic tank. But, they cannot include pipes laid underground for carrying water supply. It is not in dispute that the PVC pipes have diverse uses and it is not restricted to water supply or sanitary alone. A factual finding has been recorded to the effect that there is no evidence on record to prove that the items have been used as water supply and sanitary fittings. This conclusion being a factual conclusion, is not open to be challenged in a petition under section 41 of the Act. While considering the case of G.I. pipes vis-a-vis item 26A which related to water supply and sanitary fittings at the relevant time, apex Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. G.S. Pai & Co. 1980 45 STC 58; 1979 KLT 871 held that in the absence of any finding of materials to the contrary brought on record by the Revenue the conclusion of the Tribunal have to be approved. It may be noted that in T.R.C. Nos. 1980 45 STC 58; 1979 KLT 871 held that in the absence of any finding of materials to the contrary brought on record by the Revenue the conclusion of the Tribunal have to be approved. It may be noted that in T.R.C. Nos. 62 and 63 of 1997 disposed of on May 21, 1998, i.e., N. R. Somasundaran Nair v. State of Kerala 1999 112 STC 214; 1999 (1) KLT SN 40 it was observed by a division Bench of this Court that the words "water supply" in entry 217 are used in juxtaposition of the words "sanitary fittings", meaning thereby, that the former will have the same meaning which the latter expression has, while dealing with the case of plastic water tanks. Conclusions of the Tribunal are correct and no interference is called for.Applications dismissed.