The Mysore Fertilizer Co. vs The State of Karnataka

V.K. Singhal, J.—All these petitions are disposed of by this common judgment since the controversy involved is common.

The dispute is in respect of assessment year 1989-89 to 1993-94. Assessee is a dealer in Fungicides, Weedicides and Herbicides, Zinc Sulphate etc. So far as the liability of basic tax under the KST Act is concerned, the Petitioner is liable to pay tax at 3% under Entry 5, Part I of Second Schedule, which provides for rate of tax u/s 5(3)(a) on Insecticides, pesticides and Fungicides. This position is not in dispute. u/s 6B there is a liability of turnover tax. The State Government has the power to exempt the tax u/s 8A. Accordingly, the notification dated 29.6.1981 was issued in which exemption from payment of tax payable u/s 6B was granted on insecticides and pesticides. This notification remained in force till 30.3.1996. Proceedings u/s 12A were initiated and the Additional Deputy Commissioner of Commercial Taxes found that Fungicides, Weedicides, Plant Promoters etc., will not fall in the category of Insecticides and Pesticides.

The Joint Commissioner of Commercial Taxes, came to the conclusion that the Assessee is liable to turnover tax and dismissed the appeal. The order passed by the appellate authority was confirmed by the Tribunal.

Before us, submission of the learned Counsel for the Petitioner is that pro duction, sale and distribution of insecticides is covered by the Insecticides Act, 1968. Definition of ''Insecticides'' as per the Insecticides Act, is as under:

3(e). Insecticide means.-

(i) any substance specified in the schedule; or

(ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the Official Gazette, include in the schedule from time to time; or

(iii) any preparation containing any one or more of such substances.

There is a schedule attached to the Act in which the list of Insecticides notified by the Central Government from time to time has been given. It is submitted that the item sold are within the category of insecticides and was duly incorporated in the schedule at the relevant time.

Learned Counsel for the Petitioner referred to the judgment given in the case of B.H. Vasudeva Pai and Sons v. State of Karnataka in STA 1 of 1987 and connected matters dated 1.1.1996, where the dispute was regarding the liability of turnover tax on copper sulphate u/s 6B. Reference was made to the Insecticides Act, 1969 and Insecticides Rules, 1971 which was considered excellent piece of evidence and was relied on. It was also found that the Copper Sulphate was subsequently excluded and is not liable to tax.

In Associated Agencies v. State of Tamilnadu (1993) 89 STC 447, the matter pertain to the assessment year 1975-76. The Entry at the relevant time referred to ''Insecticides and Pesticides''. Subsequently by Act 7 of 1977, ''Fungicides and Herbicides'' etc., were included in ''Insecticides and Pesticides''. It was in the context of this subsequent amendment it was considered by the Madras High Court that entry could not be considered to have been amended retrospectively. ISI publication as to what ''pesticides'' are and certificate of the Tamilnadu Agricultural University to say that ''pesticides'' include ''fungicides'' were also produced. It may be observed that this judgment does not support the contention of the learned Counsel for the State as here there is no dispute so far as the liability to pay tax u/s 5(3)(a) is concerned. Here the dispute is regarding the liability of turnover tax and in the notification of exemption the words used are ''insecticides and pesticides''. The words ''insecticides, pesticides and fungicides'' etc., are not defined under the Sales Tax Act nor any definition has been given as to what is the meaning given to ''insecticides and pesticides'' in common or commercial parlance. Insecticides Act, 1968 is a Central Act to regulate manufacture, sale, transport, distribution and use of insecticides. This Act has been enacted by the Parliament.

In State of Madras v. Ganon Dunkerley and Co. (1958) 9 STC 353 Constitutional Bench of the Apex Court has held that entry in the local Sales Tax law has to be interpreted in its legal sense and should be given the same meaning which has been given by the Central Act.

The schedule attached to Insecticides Act, includes ''fungicides and weedicides''. The various items sold by the Petitioner, whether during the relevant time were within the category of ''insecticides and pesticides'' as defined under the Insecticides Act, 1968, has to be specified by him.

Revision petitions are accordingly allowed and assessing authority will examine the matter afresh and if it is found that the item sold by the Petitioner falls within the schedule of Insecticides Act, 1968. The Petitioner would not be liable to turnover tax.