JUDGMENT K. S. RADHAKRISHNAN J. – Common questions arise for consideration in all these cases and hence we are disposing of these cases by a common judgment. Appellant in O.T.A. No. 6 of 2006 is the petitioner in W.P.C. No. 16721 of 2006. Appeal was preferred under section 62(1) of the Kerala Value Added Tax Act, 2003 read with rule 80(1) of the Rules challenging the clarificatory order dated April 7, 2006 passed under section 94 of the VAT Act by the Commissioner of Commercial Taxes, Trivandrum. W.P.C. No. 16721 of 2006 was preferred seeking a declaration that serial number 66 inserted as per exhibit P 2 notification dated January 21, 2006 is inoperative and unenforceable so far as it varies from HSN Code 8516.79.20. Appellant, hereinafter referred to as "the company", is engaged in the manufacture, sale and marketing of household insecticide, pesticides such as Mortein mosquito coils, mat vaporisers, liquid vaporisers, multi-insect killers and disinfectants such as Harpic and Lizol and Dettol antiseptic. From April 1, 2005 to September 30, 2005 the company conceded a total and taxable turnover of Rs. 7,15,06,109 and Rs. 6,85,10,555, respectively. According to the company, it had collected VAT at the rate of four per cent of Rs. 27,40,376 and the same was deposited with the Commercial Tax Department. The company was however served with a notice under section 67, VAT Act, 2003 dated April 25, 2005 staring that on verification of the returns for the months from April, 2005 to September, 2005 it was noticed that the turnover mentioned therein related only to mosquito repellent and related devices and not involving rodenticides/pesticides. It was stated that mosquito repellent and electronic mosquito repellent devices are taxable at 12.5 per cent vide entry 66 of S.R.O. No. 82 of 2006. Further it was also stated that the commodity sold by the company bears HSN Code 8516.79.20. Prior to the publication of the list by Notification S.R.O. No. 82 of 2006 attracting 12.5 per cent tax, mosquito repellents and related devices, warranted levy of VAT at the rate of 12.5 per cent, vide section 6(1)(d) of the VAT Act, 2003. It is stated that what is contained under entry 44 of the Third Schedule to the VAT Act and taxable at four per cent is insecticides bearing HSN code 3808. It is stated that what is contained under entry 44 of the Third Schedule to the VAT Act and taxable at four per cent is insecticides bearing HSN code 3808. It was stated that the rate of tax of four per cent conceded by the dealer is, hence, incorrect. Filing of untrue return and evading tax at the rate of 8.5 per cent is an offence punishable under section 67 of the VAT Act, 2003. Evasion of tax, therefore, worked out to Rs. 6,85,10,555. It was also proposed to impose a penalty of Rs. 1,16,46,886 being double the tax evaded and the company was asked to file its objections and was given an opportunity to get the offence compounded departmentally under section 74 of the Act in lieu of prosecution. The company then submitted an application in form No. 24 dated August 29, 2005 before the Commissioner of Commercial Taxes for a clarification under section 94 of the VAT Act as to whether the products in question would fall under any other entry other than entry No. 44(5) of the Third Schedule to the VAT Act. Contention of the company was examined by the Commissioner in detail. Commissioner took the view that mosquito repellents, electric-electronic mosquito repellents, gadgets and insect repellents, devices and parts thereof are taxable at the rate of 12.5 per cent under serial number 66 of residuary list of items published as per S.R.O. No. 82 of 2006 with HSN code 8516.79.20. Further, it was also pointed out that serial No. 44 of the Third Schedule generally speaks of fertilisers, pesticides, weedicides, insecticides, fungicides, etc., whereas serial No. 66 of S.R.O. No. 82 of 2006 speaks specifically of mosquito repellents. It was also ordered that the claim of the applicant that the items mosquito coil, mat vaporiser and liquid vaporiser would fall under the heading 3808.10.37 of the Central Excise Tariff Act is not correct since the heading 3808.10.37 deals with synthetic pyrethrum and the products mosquito coil, mat vaporiser and liquid vaporiser are not synthetic pyrethrum and hence would fall under the heading 3808.10.37. Commissioner, therefore, clarified that Mortein mosquito coil, mat, liquid and electrically operated vaporisers, gadgets, etc., are taxable at the rate of 12.5 per cent. Commissioner, therefore, clarified that Mortein mosquito coil, mat, liquid and electrically operated vaporisers, gadgets, etc., are taxable at the rate of 12.5 per cent. So far as Mortein insect killer, it was clarified that the same would fall under entry 103 of S.R.O. No. 82 of 2006 and taxable at 12.5 per cent. Similarly, rat kill cake is a rodenticide and, hence, would fall under entry 44(5) of the Third Schedule to the VAT Act, 2003 as amended by KVAT (Amendment) Act, 2005 and taxable at four per cent. Commissioner also clarified that Harpic toilet cleaner and Lizol disinfectant floor cleaner would fall under serial No. 27(4) of S.R.O. No. 82 of 2006 and are taxable at 12.5 per cent. Dettol antiseptic liquid is not prescribed as a medicine for curing disease, but used for cleaning purpose and hence it would not come under entry 36(8) of the Third Schedule to the VAT Act and is taxable at the rate of 12.5 per cent. Aggrieved by the said order the company has come up with these appeals and writ petition. Sri K. U. Vijayan, counsel appearing for the appellant, submitted that the goods sold by the company would clearly fall under section 6(1)(a) of the VAT Act, 2003 and the Government was not authorised under section 6(1)(d) to notify list of goods taxable at 12.5 per cent which do not fall under section 6(1)(a) or 6(1)(c). Counsel submitted that the goods manufactured by the company would fall under clause (5) of serial No. 44 of the Third Schedule which refers to 3808 HSN Code, which under the Customs Tariff Act takes in 3808.10.91 dealing with repellents for insects such as flies, mosquito. Counsel submitted that the HSN Code forms part of the statute and the word "commodity" is given the same meaning as assigned under the Customs Tariff Act, 1975. Counsel submitted that the HSN Code takes in all the commodities coming under the code 3808. Counsel further submitted that the Finance Minister has proposed levy of 12.5 per cent on sale of insect repellents as per proposal No. 203 in the Budget speech of 2006-2007 and proposed to amend serial number 44 in item (5) in column (3). Counsel also submitted that imposition of penalty on the basis of Notification S.R.O. No. 82 of 2006 is unsustainable. Counsel also submitted that imposition of penalty on the basis of Notification S.R.O. No. 82 of 2006 is unsustainable. Reference was made to the decision in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India [1985] 1 SCC 641 and also to the decisions in State of U.P. v. Renusagar Power Co. AIR 1988 SC 1737 , Supreme Court Employees Welfare Association v. Union of India AIR 1990 SC 334 , Shri Sitaram Sugar Co. Ltd. v. Union of India AIR 1990 SC 1277 . Counsel also submitted that imposition of penalty amounts to exercise of public authority in a cavalier fashion without the application of mind, which is illegal and liable to be set aside. Counsel also made reference to the decision in Assistant Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 (SC), Union Territory of Pondicherry v. P. V. Suresh [1994] 2 SCC 70, P. D. Sudhi v. Intelligence Officer [1992] 85 STC 337 (Ker) and Sagar Dye-chem. v. State of Kerala [2003] 133 STC 478 (Ker) and Sunitha Diesel Sales & Services v. State of Kerala [1996] 102 STC 448 (Ker). O.T.C. No. 4 of 2006 was filed challenging the clarificatory order issued on May 23, 2006 by the Commissioner of Commercial Taxes clarifying that the product "All Out" mosquito destroyer manufactured by the appellant is taxable at 12.5 per cent as per S.R.O. No. 82 of 2006. Commissioner took the view that mosquito repellents whether coil, mat or electrically operated, vaporiser, gadgets, etc., do not fall under entry 44 of the Third Schedule to the VAT Act. Counsel appearing for the appellant supported the arguments of the counsel appearing in the other appeal. Learned Government Pleader (Taxes) Sri V. V. Asokan submitted that the products mosquito repellents, mosquito vaporiser, gadgets, etc., do not fall under clause (5) of serial number 44 of the Third Schedule to the VAT Act. Counsel submitted that serial number 44 generally takes in fertilisers, pesticides, weedicides, insecticides and similar products. When there is a specific entry as serial number 66 which takes in mosquito repellents, electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof, counsel submitted that the appellant's products would fall only in that entry. Counsel submitted that serial number 44 generally takes in fertilisers, pesticides, weedicides, insecticides and similar products. When there is a specific entry as serial number 66 which takes in mosquito repellents, electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof, counsel submitted that the appellant's products would fall only in that entry. Learned Government Pleader further submitted that the Government vide S.R.O. No. 82 of 2006 have issued notification in enlisting those items as per section 6 of the VAT Act. That does not mean that mosquito repellent is taxable at 12.5 per cent only from January 21, 2006. Learned Government Pleader submitted that under the Kerala General Sales Tax Act, there had been a specific entry to cover mosquito repellents and therefore such commodity had been known and identified in the market and amongst consumers only as mosquito repellents and tax has been levied on that basis. Further, HSN Code appearing in entry 44(5) was deleted by Finance Act, 2006 to overcome the confusion created with reference to that HSN Code. Referring to the decision of the division Bench of this court in Transelektra Domestic Products Private Limited v. State of Kerala [2001] 122 STC 229; [2000] 8 KTR 556, counsel submitted that before April 1, 1991 mosquito repellent was not specifically classified. Counsel submitted that since April 1, 1991 there is a specific entry 93 in the First Schedule which imposes eight per cent tax on mosquito repellents including electric or electronic mosquito repellents, etc. Counsel submitted, therefore, that all along there was no difference between those products under the Kerala General Sales Tax Act, as well as under the VAT Act and the petitioner cannot raise a contention on the basis of HSN Code that the item would not fall in the genesis (main description) of the tariff item. Item 56 contained therein has to be interpreted in line with the genesis. We may, at the outset, point out that a mere reading of serial number 44 would indicate that the products mosquito coil, mats, liquid vaporiser, insect killer, All Out, mosquito repellents, etc., would not fall under the genesis or under species of clause (5) of entry 44 of the Third Schedule to the VAT Act and at the same time it would fall under serial No. 66 of S.R.O. No. 82 of 2006. In our view, once it would not fall under sub-clause (5) of serial No. 44 if the Notification S.R.O. No. 82 of 2006 was not in force it would squarely fall under sub-clause (d) of section 6 of the VAT Act. We may for easy reference extract serial No. 44 of the Third Schedule to the VAT Act. ------------------------------------------------------------------------------------ 44. Fertilizers, pesticides, weedicides, insecticides, fungicides, herbicides, rodenticides, anti-sprouting products and plant growth regulators, bio-fertilisers, micro nutrients, disinfectants and similar products. ------------------------------------------------------------------------------------ (1) Animal or vegetable fertilizers, whether or not mixed together or 31.01 chemically treated; fertilizers produced by the mixing or chemical treatment of animal or vegetable products other than those specified under First Schedule ------------------------------------------------------------------------------------ (2) Chemical fertilizer ------------------------------------------------------------------------------------ (a) Mineral or chemical fertilizers, nitrogenous 31.02 ------------------------------------------------------------------------------------ (b) Mineral or chemical fertilizers, phosphatic 31.03 ------------------------------------------------------------------------------------ (c) Mineral or chemical fertilizers, potassic 31.04 ------------------------------------------------------------------------------------ (d) Mineral or chemical fertilizers containing two or three of the 31.05 fertilizing elements nitrogen, phosphorus and potassium; other fertilizers ------------------------------------------------------------------------------------ (3) Gypsum 2520.10.10 ------------------------------------------------------------------------------------ (4) Bio-fertilizers, bio-control agents and micro nutrients .... ------------------------------------------------------------------------------------ (5) Pesticides, weedicides, insecticides, fungicides, herbicides, 3808 rodenticides, anti-sprounting products and plant growth regulators, and similar products other than micro products. ------------------------------------------------------------------------------------ We may also extract section 6(1)(a) to (d) for easy reference. "6. Levy of tax on sale or purchase of goods. - (1) Every dealer whose total turnover for a year is not less than ten lakhs rupees and every importer or casual trader or agent of a non-resident dealer or dealer in jewellery of gold, silver and platinum group metals or silver articles or contractor or any State Government, Central Government or Government of any Union Territory or any department thereof or any local authority or any autonomous body whatever be his total turnover for the year, shall be liable to pay tax on his sales or purchases of goods as provided in this Act. The liability to pay tax shall be on the taxable turnover - (a) in the case of goods specified in the Second and Third Schedules, at the rates specified therein and at all points of sale of such goods within the State. (b) ... The liability to pay tax shall be on the taxable turnover - (a) in the case of goods specified in the Second and Third Schedules, at the rates specified therein and at all points of sale of such goods within the State. (b) ... (c) in the case of transfer of the right to use any goods for any purpose whether or not for a specified period, at the rate of four per cent at all points of such transfer; (d) in the case of goods not falling under clause (a) or (c) at the rate of 12.5 per cent at all points of sale of such goods within the State. Government may notify a list of goods taxable at the rate of 12.5 per cent." Clause (d) of sub-section (1) of section 6, as it stood earlier, read as follows : In the case of goods not falling under clause (a), (b) or (c), at the rate of 12.5 per cent at all points of sale of such goods within the State. Later the above clause was substituted by KVAT (Amendment) Act, 2005 (Act 39 of 2005) which came into effect on April 1, 2005 and therefore even prior to April 1, 2005 and after April 1, 2005 in the case of goods not falling under clause (a) or (c), rate of tax was 12.5 per cent at all points of sale of such goods within the State. We have already found that the appellants' products would not fall under sub-clause (a) of sub-section (1) of section 6 of the VAT Act since serial No. 44 of the Third Schedule would not take in the item manufactured and sold by the appellants. Confusion if at all was there, was with regard to HSN Code 3808 appearing in Chapter XXXVIII of the Customs Tariff Act. We may extract the main description (heading) of goods falling under 3808, as follows : "3808. Confusion if at all was there, was with regard to HSN Code 3808 appearing in Chapter XXXVIII of the Customs Tariff Act. We may extract the main description (heading) of goods falling under 3808, as follows : "3808. Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles, and fly-papers)." HSN Code 3808.10.91 reads as follows : Repellents for insects such as flies, mosquito." Appendix to the Rules of interpretation of the Schedules to the VAT Act states that the commodities in the Schedules are allotted with code numbers, which are developed by the International Customs Organisation as harmonised system of nomenclature (HSN) and adopted by the Customs Tariff Act, 1975. However, there are certain entries in the Schedules for which HSN numbers are not given. Those commodities which are given with HSN number should be given the same meaning as given in the Customs Tariff Act, 1975. Those commodities which are not given HSN number should be interpreted in common parlance or commercial parlance. While interpreting a commodity, if any inconsistency is observed between the meaning of a commodity without HSN number and the meaning of a commodity with HSN number, the commodity should be interpreted by including it in that entry which is having the HSN number. HSN numbers are allotted in the Schedules either in four digits or in six digits or in eight digits. The four-digit numbers indicate the heading in the HSN classification, six-digit numbers indicate the sub-heading and the eight-digit numbers indicate the specific commodity number. Looking at HSN Code 3808.10.91 (eight digits) - repellents for insects such as flies, mosquito, we have no hesitation to say that it has direct relation with the heading (3808), i.e., insecticides, fungicides, herbicides, anti-sprouting products and plant growth regulators, etc. At the same time, HSN Code 8516.79.20 of the Customs Tariff Act which deals with electrical or electronic devices for repelling insects (for example, mosquitoes or other similar kind of insects) which falls under main HSN Code 8516. Looking at the HSN Code we have no hesitation to say that HSN Code 3808.10.91 is to be read along with the heading 3808. Looking at the HSN Code we have no hesitation to say that HSN Code 3808.10.91 is to be read along with the heading 3808. If so read, items manufactured and sold by the appellants would not fall under HSN Code 3808 and also under serial No. 44(5). Then it would fall under section 6(1)(d) of the VAT Act attracting tax at the rate of 12.5 per cent. S.R.O. No. 82 of 2006 has reinforced that making it taxable under serial number 66 attracting tax at the rate of 12.5 per cent. In such circumstances we find no error in the clarificatory order issued by the Commissioner. Appeals lack merit and they are accordingly dismissed. Notice calling for imposition of penalty of Rs. 1,16,46,886, which is double the evasion of tax, is without any application of mind. Filing of untrue return is an offence punishable under section 67 of the VAT Act. Notice issued under section 67 does not speak of any deliberate or contumacious conduct on the part of the assessees. In this connection reference may be made to the decision of the apex court in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax [1980] 45 STC 197, wherein it has been held as follows : "A return cannot be said to be 'false' within the meaning of section 43 unless there is an element of deliberateness in it. It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of the assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, the court may, in a given case, infer deliberateness and the return may be liable to be branded as a false return." Notice also does not disclose any blameworthy or contumacious conduct on the part of the appellants to impose penalty at double the rate of tax evaded and hence it calls for reconsideration. If the authorities propose to impose penalty, they may issue fresh notice giving opportunity to the appellants to file objection. The order imposing penalty is, therefore, set aside leaving liberty to the authorities to pass fresh orders. Appeals and the writ petitions are disposed of as above.