Judgment :- 1. Petitioner, a manufacturer of pesticides, is challenging the amendment brought in to the III Schedule of Entry 23 of the Karnataka Value Added Tax Act, 2003 during 2008 permitting imposition of tax on insecticides that are used other than for agricultural purposes at 12.50% in stead of at 4%. 2. According to the petitioner, he is a manufacturer of pesticides / insecticides. The order issued by the Commissioner of Commercial Taxes conferring jurisdiction on the Deputy Commissioner of Commercial Taxes (Enforcement) 1, South Zone for passing of assessment / reassessment order in the case of the petitioner under S.39(1) of the VAT Act for the tax period from August 2008 to March 2009 and April 2009 to January 2010, is opposed to principles of natural justice since already the authority has determined that petitioner is liable to pay tax at higher rate of 12.5% on sale of household insecticides, pesticides and rodenticides. 3. Heard the counsel representing the parties. 4. It is the petitioner’s case, by the amendment brought to Entry 23 of the III Schedule of the Act with effect from 1.8.2008 despite there is a specific mention of insecticides, pesticides and rodenticides in the said Entry, the petitioner’s goods have not been certified as scheduled insecticides. It is also stated, the Ministry of Agriculture, Department of Agriculture & Co-operation, Government of India has classified and certified the petitioner’s household insecticides products under S.3 of the Insecticides Act, 1968 and the reassessment order passed by the respondent authority is without any basis and not in accordance with the provisions of the VAT Act. It is also stated, the Ministry of Agriculture, Department of Agriculture & Co-operation, Government of India has classified and certified the petitioner’s household insecticides products under S.3 of the Insecticides Act, 1968 and the reassessment order passed by the respondent authority is without any basis and not in accordance with the provisions of the VAT Act. Also, petitioner is questioning the amendment brought into the III Schedule of Entry 23 as beyond legislative competence of the State in the light of the object to bring about uniformity in respect of classification of products and the rates of tax on sale of goods within the various States of the Union of India and to consider whether any State has got the prerogative to classify the goods in a manner different from the one settled and accepted in all the States and, the specific prayer is to set aside the reassessment order assessing the tax payable at 12.5% for the assessment period mentioned and only to impose VAT at 4% on the sale of G K Aerosol, HIT Aerosol, Hit rat and hit line which are insecticides and attract tax at 4% and are like insecticides used for agricultural purpose, as such, classification cannot be made so as to rise the imposition of tax stating that it is used for a different purpose. 5. After the amendment, Entry 23 of the III Schedule of the Act reads as under: 6. Chemical fertilizers, chemical fertilizer mixtures; bio-fertilizers, micro nutrients, gypsum, plant growth promoters and regulators; rodenticides, fungicides, weedicides and herbicides; insecticides or pesticides but excluding phenyl, liquid toilet cleaners, floor cleaners, mosquito coils, mosquito repellants and the like used for non-agricultural or non-horticultural purposes. 7. Petitioner’s counsel, relying upon the Division Bench judgment of this Court in Ashok Agencies Vs State of Karnataka – 2008 (65) KLJ 97, contended that all kinds of insecticides fall within Entry 23 of the III Schedule annexed to the Act as such, mosquito repellants being insecticide, falls within Entry 23 of III Schedule and accordingly contended referring to Item 6 of the Schedule annexed to the Insecticides Act, 1968, that the word d Allethrin is shown as substance which comes within the definition of insecticides as defined under S.3(e) of the Insecticides Act of 1968. It is also submitted, the active ingredients used – Imiprothrin, Cypermethrin, etc., in the petitioner’s products are mentioned in the Insecticides Act, as such, to impose higher rate of tax the amendment brought in could not be reserved for clarification as it comes within the definition of insecticides as is defined under the Insecticides Act as well as under Entry 23 of the III Schedule to the VAT Act. 8. Government Pleader submitted, the Apex Court in the case of United Offset Process Pvt Ltd Vs Assistant Collector of Customs, Bombay & Ors – AIR 1989 SC 622 has observed: 9. If there is no meaning attributed to the expressions used in the particular enacted statute then the items in the customs entries should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them, provided that there is a market for these types of goods. This principle is well known as classification on he basis of trade parlance. This is an accepted form of construction. It is a well known principle that if the definition of a particular expression is not given, it must be understood in its popular or common sense viz., in the sense how that expression is used everyday by those who use or deal with those goods. 10. It is argued that, classification on the basis of trade parlance is a reasonable classification for the purpose of imposition of tax and, the judgment of this Court in Ashok Agencies Case is without reference to the ratio laid down by the Apex Court in United Offset Process Pvt Ltd’s case. Government Pleader has also relied upon another decision of the Apex Court in the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs G S Pai & Co. Government Pleader has also relied upon another decision of the Apex Court in the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs G S Pai & Co. – 1980 Sales Tax Cases V:45, Pg.58 to contend that the words used by the legislature must be given their popular sense meaning, `that sense which people conversant with the subject matter with which the Statute is dealing would attribute to it’ and also contended that the judgment in Ashok Agencies case by this Court is prior to the amendment to Entry 23 of the III Schedule of the VAT Act wherein household insecticides have been categorised as a separate category for the purpose of imposing a different tax rate and imposing of tax for insecticides used for agriculture and horticulture purpose have been shown at a lower rate of 4% keeping in view the financial exemption given to those fields and not for other purpose. 11. In the case on hand, the contention of the petitioner is, the re-assessing authority acted at the instance of the Commissioner as such, even if appeal is preferred, the appellate authority would not decide in any other manner, it would not be an efficacious remedy and it would be a mere exercise in futility as the Joint Commissioner, being the appellate authority subordinate to the Commissioner, would not take a different view. Accordingly, he has sought for consideration of his case on merits by this Court. 12. Government Pleader has argued that the clarification issued by the Commissioner even if it is treated as an interpretation, then necessarily, the order that would be passed by the appellate authority would not be other than in terms of the clarification issued by the Commissioner of Commercial Taxes. 13. 12. Government Pleader has argued that the clarification issued by the Commissioner even if it is treated as an interpretation, then necessarily, the order that would be passed by the appellate authority would not be other than in terms of the clarification issued by the Commissioner of Commercial Taxes. 13. Even assuming that the Joint Commissioner would not act other than the way in which instructions were issued by the Commissioner of Commercial Taxes, and it has to be treated as good an order passed by the Commissioner himself in the matter of assessment / re-assessment, however, still a reading of the amendment to Entry 23 would need interpretation in the background whether, straightaway it falls within the meaning of insecticides only to attract 4% tax and there could not have been any distinction between using of insecticide for agricultural or horticultural purpose and for domestic purpose, and it is a matter of appreciation of facts as well as question of law is involved . 14. In that view of the matter, taking into consideration the arguments advanced on behalf of the petitioner and the likelihood of a futile exercise that could be done by the Joint Commissioner, petitions are disposed of with liberty to the petitioner to approach the Appellate Tribunal and to take all such contentions. The Appellate Tribunal to dispose of the matter within three months from the date of appearance of the petitioner. Petitioner shall approach the Tribunal by filing an application as required, on 21st February, 2011. However, the liberty given to the petitioner would not be treated as a precedent and in the facts and circumstances of this case, the order has been passed directing the petitioner to approach the Appellate Tribunal. Further, in so far as recovery of the balance 50% of the tax from the petitioner, till a decision is taken by the Appellate Tribunal, the respondent authority shall not precipitate the matter to recovery tax.