M/S. Bella Premier Happy Hygiene vs. State Of Karnataka

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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
RD
DATED THIS THE 23 DAY OF OCTOBER, 2017
BEFORE
THE HON’BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.49577/2014 (T-RES)
BETWEEN
M/s Bella Premier Happy Hygiene
Care Private Limited,
# 319/1, A Block, Ground Floor,
Hosur Main Road,
Bengaluru-560 068.
Represented by Managing Director &
Daniel Norbert Babalski, Director.
...Petitioner
(By Mr. Shivadass G., Advocate)

AND

1. State of Karnataka,
Through its Principal Secretary,
Finance Department,
Vidhana Soudha,
Bengaluru-560 001.

2. Commissioner of Commercial Taxes
in Karnataka,
“Vanijya Therige Karyalaya”,
Gandhinagar,
Bengaluru-560 009.
...Respondents
(By Mr. T.K. Vedamurthy, AGA)

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This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to hold that
Sec.3(ii) & 3(iii) of the Karnataka Act No.54/13,
amending Sub-Clause (7) & inserting Sub-Clause (8) to
Section 60 of KVAT Act respectively as illegal and
violative of Article 19(1)(g) R/w Article 301 & Article 14
of Constitution of India.

This petition coming on for ‘Final Hearing’ this
day, the court made the following:

ORDER

The petitioner, a manufacturer of ‘All-in-one
Diapers, Under-pads and Sanitary Napkins’ has
approached this Court by way of present writ petition,
aggrieved by the Clarification Order dated 11.09.2014
passed by the Respondent-Commissioner of Commercial
Tax Department under Section 59(4) R/w Section 60(8)
of Karnataka Value Added Tax Act, 2003 (hereinafter
referred to as ‘the Act’ for brevity), purportedly clarifying
the rate of tax and over-ruling the previous decision
by the Advance Ruling Authority (for short ‘the ARA’) on


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30.03.2007 issued in favour of the petitioner holding
these commodities as taxable at the concessional rate of
4.5% under Schedule III of the Act.

2. Learned Commissioner by the impugned
Clarification Order dated 11.09.2014 reversing the
decision of Advance Ruling Authority has held that the
said items cannot fall under Entry 60 of the Schedule III
of the Act, and therefore, these items would be taxable
in the residuary entry at the rate of 14.5% of the Act.
The petitioner therefore, filed this petition challenging
the said order as well as the vires of Section 60(8) of the
Act, which was brought on the statute book by the later
amendment w.e.f. 01.08.2013 by Act No.54 of 2013.

3. Learned counsel for petitioner Mr. Shivadass
G. has urged before the Court that the ARA (a
Committee of three Additional Commissioners
constituted by the Commissioner himself and delegated
the power by the Commissioner under Section 60 of the


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Act) had not only passed the order in favour of the
petitioner under Section 60(2)(d) of the Act and which
order is final, as per Section 60(7) of the Act but it was
passed after examining the matter in detail and giving
an opportunity of hearing to the Department also and it
held that that these items were taxable as “Medical and
pharmaceutical preparations; Medicated ointments
manufactured or imported under license granted under
the Drugs and Cosmetics Act, 1940; light liquid paraffin
of IP grade; Wadding gauze, bandages and similar
articles for medical, surgical, dental or veterinary
purpose ; Diagnostics or laboratory reagents including
prepared diagnostic or laboratory reagents” and rightly
so, but the learned Commissioner in the impugned
order at Annexure-A dated 11.09.2014 following such
Clarifications issued by him in two other cases of
M/s. Xtra Care Products Private Limited and M/s.
Dowell Surgical Private Limited, Bangalore , held that
the ‘ Adult Diapers of various sizes’ were taxable under


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Residuary entry taxable from 12.5% to 14.5% for the
periods commencing from 01.04.2005 till the date of
passing of the order.

4. The Learned counsel for petitioner,
Mr.Shivadass G., also submitted that the State
Government later on has issued a Notification on
31.03.2016 specifying the concessional rate of 5.5% on
such Adult Diapers. He contended that firstly, the order
passed by the learned Commissioner under Section
60(8) of the Act, could not be given any retrospective
effect and secondly, the said Clarification on merits also
is not legally sustainable and in the case of the
petitioner itself, the Advance Ruling Authority had
rightly held such products to be taxable at the
concessional rate of 4.5% under Schedule III of the Act.

5. He further submitted that the respondent-
Department had an option of filing a Revision Petition
against the order passed by the Advance Ruling


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Authority before the Commissioner within a period of
four years, under Section 64(2) of the Act and if the
assessee was so aggrieved by the order passed by the
Advance Ruling Authority under Section 60(2)(d) of the
Act, the assessee could also file an appeal before the
High Court under Section 66(1) of the Act. He urged
that since the Advance Ruling was in favour of the
assessee-dealer, there was no question of assessee-
dealer filing an appeal against the said order in the
present case, but however, the Department having failed
to agitate against the said order, should be deemed to
have acquiesced and accepted the said ruling in the
case of the petitioner and therefore, there was no
justification for the learned Commissioner to pass the
impugned order reversing the said Advance Ruling and
issuing the so called Clarification which is not correct in
law. He has also urged that such power given under
amended provisions of Section 60(8) of the Act are also


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ultra-vires and therefore, the said section also deserves
to be quashed and struck down.

6. On the other hand, learned counsel for
Revenue, Mr. Vedamurthy, argued to support the
impugned order on the basis of the reasons given in the
impugned order itself namely,
“that since these Diapers are not necessarily
usable by the patients in the Hospital only, but
can be used at home also; therefore, they cannot
fall under Entry 60 of the Schedule III of the Act.”

7. I have heard the learned counsels and
perused relevant statutes.

8. The relevant Entry 60 of Schedule III of the
Act is quoted below for ready reference:
“Section 59: Instructions to Subordinate
Authorities:

(1) The Government and the
Commissioner may from time to time, issue such
orders, instructions and directions to all officers


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[including Commercial Tax Inspectors] and
persons employed in the execution of this Act as
they may deem fit for the administration of this
Act, and all such officers and persons shall
observe and follow such orders, instructions and
directions of the Government and the
Commissioner.

(2) No such order, instructions, or
directions shall be issued under sub-section (1)
so as to interfere with the discretion of any
appellate authority in the exercise of its
appellate functions.

(3) All officers and persons employed in
the execution of this Act, shall observe and
follow such administrative instructions as may
be issued to them for their guidance by the
Additional Commissioner or Joint Commissioner
within whose jurisdiction they perform their
functions.

(4) Without prejudice to the generality
of the foregoing power, the Commissioner may,
on his own motion or on an application by a
registered dealer liable to pay tax under the Act,
if he considers it necessary or expedient so to
do, for the purpose of maintaining uniformity in


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the work of assessments and collection of
revenue, clarify the rate of tax payable under
this Act in respect of goods liable to tax under
the Act, and all officers and persons employed
in the execution of this Act shall observe and
follow such clarification.

(5) No such application under sub-
section(4) shall be entertained unless it is
accompanied by proof of payment of such fee,
paid in such manner, as may be prescribed.

9. The relevant extraction of Advance Ruling
Authority, order dated 30.03.2007 (Annexure-B) is
quoted below for ready reference:


ORDER NO.AR.CLRCR-119/2006,
DATED:30.03.2007
The applicant M/s.Bellapremier Happy
Hygienecare Private Limited, are registered dealer
under KVAT Act, 2003 holding TIN No.
29820201030 born on the files of LVA-020,
dealing in Adult Diapers and Under pads, which
are used by patients under Medical treatments
and has sought clarification on the rate of tax
applicable to those goods.


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In response to the notice, Sri.Arkadiusz
Grochowski, General Manager, appeared and
argued. It is represented that, Adult Diaper and
Under pads for patients are used under medical
conditions, where the patients are bedridden or
has no control over urination etc., which has
absorption characteristics and mainly used in
hospitals. These items are also used in maternity
treatments.

The applicant’s understanding is that these
products would fall in the category of Medical
apparatus, covered by Entry No.60 of III Schedule
to the KVAT Act, 2003 which reads as below:
“Medical and pharmaceutical preparation:
Medicated ointments manufactured or imported
under license granted under the Drugs and
Cosmetics Act, 1940; light liquid paraffin of IP
grade; Wadding gauze, bandages and similar
articles for medical, surgical, dental or veterinary
purposes; Diagnostics or laboratory reagents”.

The matter is examined. The literatures
furnished are perused It is made clear that these
products are used on patients only during the
time of medical treatments and therefore
could be terms as wadding gauze, bandages


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and similar articles for medicals, surgical
treatments.
Therefore, it is hereby clarified that All-in-
one diapers for adults and under pads use on
patients in hospitals and in the course of medical
treatment are covered under Entry No.60 of III
Schedule to the KVAT Act, 2003 liable to tax at
4%.

(H.R.Teghoor) (K.S.Rama Naik)
Member Chairman


10. The relevant extraction of the order passed
by the Commissioner of Commercial Taxes,
(Karnataka), Bangalore, (Annexure-A) is reproduced for
ready reference:

8. All contentions raised in the Statement of
Objections are considered and findings are as
below:

(i) A diaper is a kind of underwear that
allows one to defecate or urinate in
discreet manner. Disposable diapers
contain absorbent chemicals and are
thrown away after use. Under pads are


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made with soft, non-woven top layers for
wicking fluid away from the skin.
Cellulose fibers make them comfortable
and absorbent, and a strong, leak
proof back sheet holds fluid . Both these
products can be used in hospitals as well
as in the home.

(ii) Diapers are used by adults with
incontinence or in certain circumstances
where access to a toilet is unavailable.
These can include those of advanced age,
individuals with certain types of physical
or mental disability and people working in
extreme conditions. Diapers are primarily
also worn by children who are not yet
potty trained or experience bedwetting.
Similarly, ‘Sanitary Napkins’ are absorbent
pads worn by a woman while she is
menstruating. All these products i.e., Adult
Diapers, Baby Diapers, Underpads,
Sanitary Napkins are similar in nature,
though their size and specifications may
vary.

(iii) Entry 60 of the III schedule reads
as follows:


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“ Medical and pharmaceuticals
preparations ; Medicated ointments
manufactured or imported under
license granted under the Drugs and
Cosmetics Act, 1940;Light liquid
paraffin of IP grade; Wadding
gauze, Bandages and similar
articles for medical, surgical,
dental or veterinary purpose;
Surgical gloves and Syringes
including needles; Diagnostic or
laboratory reagents including
prepared diagnostic or laboratory
reagents.”

A careful reading of the above
description makes it clear that
diapers under pads and sanitary
napkins cannot be termed as
“Wadding gauze” or “Bandage”
or similar articles . The
classification of commodities under
different schedules in the KVAT Act
is not based on the opinion or
guidelines issued by the external
agencies . Specific goods are
mentioned in the schedules and


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what are not specifically mentioned
cannot be assumed to be included in
the schedule. Entry 60 of the Third
Schedule cannot be read to include
medical device contended by the
dealer. Further, the tax rate in other
states is now relevant. In some of
the states the food grains are
taxable, where as the
Karnataka, the food grains are
exempted from VAT.

Taxability of commodities is left
to the will of the Legislature and the
State in its wisdom has only
considered the goods mentioned in
Entry 60 of the III Schedule. The
products for which the clarification
has been issued by the ACAR are not
sold under medical prescriptions
issued by the doctors. It is a generic
type of goods used by people of all
ages. The dealer has not made out
any case to show by people of all
ages. The dealer has not made out
any case to show that these


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products are only used during the
course of medical treatment.

(iv) The ACAR vide its order dated
30.03.2007 has come to the conclusion that
these products are used on patients only
during the time of medical treatment and
therefore could be termed as wadding
gauze, bandages and similar articles for
medical, surgical treatments. The ACAR
has concluded that “all in one diapers and
Underpads” are used by the patients in
hospitals and in the course of medical
treatment. This observation of the ACAR is
not correct for the reason that these
products can be used in hospital as well as
in the home. No similarity with reference to
wadding gauze, bandages, etc., can be
drawn from these products to say that they
are falling under articles for medical
purpose as mentioned in the Entry 60 of
the III Schedule.

(v) Thus, ‘disposable diapers’ and
‘Underpads’ cannot be held as goods
falling under entry 60 of III Schedule
as held by the ACAR in its order dated
30.03.2017. In fact they are unscheduled


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goods liable to tax at the rate of 14.5% with
effect from 01.08.2012 under Section
4(1)(b)(iii) of the said Act.”

9. In the light of the above discussion, I am
of the considered .opinion that the goods-‘All in
one diapers’, ‘Underpads’ and ‘Sanitary Napkins’
are not falling under Entry 60 of III Schedule to
the KVAT Act, 2003 and are taxable at 14.5%
under Section 4(1)(b)(iii) of the Karnataka Value
Added Tax Act, 2003.

10. In view of the above findings, the
following Clarification is issued:

CLARIFICATION NO.CLR.CR.26/2014-15
DATED11.09.2014

In suppression of the clarification
No.AR.CLR.CR.119/2006-07 dated
30.03.2007 issued by the Authority for
clarification and advance rulings and in
exercise of the powers vested in me under
sub-section (8) of Section 60 of KVAT Act,
2003, it is clarified that ‘All-in-one diapers’
of various sized ‘Underpads’ and ‘Sanitary
Napkins’ are taxable at 14.5% under
Section 4(1)(b)(iii) of the Karnataka Value
Added Tax Act, 2003. This tax rate is


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applicable to M/s.Bella Premier Happy
Hygiene Care Private Limited, Bangalore
from the date of publication of this
clarification order in the official Gazette as
per the provisions of Section 60(8). The rate
of tax applicable in respect f all other
dealers is as under for different periods:

Sl.No. Period Tax Rate
1. 01.04.2005 to 31.03.2010 12.5%
2. 01.04.2010 to 31.03.2011 13.5%
3. 01.04.2011 to 31.07.2012 14%
4. 01.08.2012 and onwards 14.5%

(AJAY SETH)
Commercial of Commercial Taxes,
Karnataka, Bangalore.


11. The later Notification issued by the State
Government on 31.03.2016 is also quoted below for
ready reference :

GOVERNMENT OF KARNATAKA

No.FD 34 CSL 2016 Karnataka Government
Secretariat,
Vidhana Soudha ,
Bengaluru, dated 31.03.2016.





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N OTIFICATION-V
In exercise of the powers conferred by sub-
section (3) of Section 4 of the Karnataka Value
Added Tax Act, 2003, (Karnataka Act 32 of 2004),
the Government of Karnataka hereby reduces
with effect from the first day of April, 2016, the
tax payable by a dealer under the said Act to five
and one half percent on the sale of the following
goods, namely:-

1. Chatnipudi prepared from; Groundnut,
Nigar seeds, Copra, Bengalgram, Garlic,
Flax Seeds and Friedgram.
2. Office files made of Paper and Paper
Boards.
3. Adult Diapers.
4. Hand operated rubber sheet making
machine.
5. Set Top Boxes for viewing Television
content.
6. Surgical gowns, masks, caps, coats and
drapes of single use made of non-woven
fabrics.
7. Helmets.
8. LED Bulbs.

By Order and in the name of the
Governor of Karnataka,

(K.S.PADMAVATHI)
Under Secretary to Government,
Finance Department (C.T-1)



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To .

The complier, Karnataka Gazette,
Bengaluru, for publication in the Extraordinary
Gazette dated 31.03.2016 and supply 100 copies
to the Finance Department (CT-1) and 1000 copies
to the Commissioner of Commercial Taxes,
Gandhinagar, Bengaluru-560009.

Copy to:
1. The Accountant General(Accounts)/
(Audit), Karnataka, Bengaluru.
2. The Commissioner of Commercial Taxes,
Gandhinagar, Bengaluru.
3. The Secretary, Karnataka Legislature
Secretariat, Bengaluru. “


12. Having given the earnest consideration to the
relevant material, this Court is of the opinion that the
petitioner cannot successfully challenge the
constitutional validity and vires of Section 60(8) of the
Act and this Court does not find any lack of legislative
competence of the State Government in enacting and
amending Section 60(8) of the Act, quoted above. The
delegation by the Commissioner of his powers to issue
clarifications and Advance Rulings by constituting an
Authority for clarifications and Advance Rulings


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comprising of atleast three Additional Commissioners,
his subordinates is not illegal in any manner. However,
such orders of Advance Ruling Authority can be undone
or modified by overriding power vested in the
Commissioner himself under Sub Section (8) inserted by
Act No.54 of 2013 with effect from 01.08.2013, and
that cannot be said to be inconsistent, conflicting or
ultra vires the provisions nor the said provisions can be
said to be lacking the legislative competence on the part
of the State Legislature. Therefore, as far as the validity
of the Sub Section (8) challenged is concerned, that
deserves to fail and that contention is accordingly
rejected.

13. Coming to the next contention of the learned
counsel for the petitioner that such a Clarification
issued by Commissioner cannot be given retrospective
effect. This Court finds substantial force in the said
argument. A clarification issued by a Quas i Judicial


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Authority in a delegated power in exercise of such
power, cannot be made retrospective, unless specifically
empowered by the parent legislation. Sub Section (8) of
Section 59 does not give any such power to the learned
Commissioner to issue any such Clarification or Ruling
with a retrospective effect. In the absence of any such
specific power, the respondent-Commissioner could
not have issued the impugned clarification by the
impugned order at Annexure-A dated 11.09.2014 to
be effective from 01.04.2005 onwards. Therefore, the
retrospectivity of the said order does not fit into the
parameters of Sub Section (8) of Section 59 of the Act
and to that extent, it deserves to be quashed.

14. The next contention of learned counsel for
assessee is that the commodities in question namely
‘All-in-one Diapers, Underpads and Sanitary Napkins’
are definitely and rightly relate to Entry 60 quoted
above, also has considerable force. The heading of the


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said Entry 60 namely, ‘Medical and Pharmaceutical
preparations’ enumerating several items also inter alia
including therein, “ Wadding Gauze, Bandages and
similar articles for medical, surgical etc., purposes”
has to be read ‘ejusdem generis’ and the items
manufactured and sold by the assessee are not the
items which are alien to the said Entry 60. They may
not be exactly “Wadding Gauze or Bandages’” but they
serve almost same or similar purposes. They are soft
under pads made with non-woven top layers for wicking
fluid and cellulose fibers make them comfortable and
absorbent and a strong, leak proof back sheet holds the
fluid and old people and senior citizens generally require
them to avoid embarrassment of leaking fluids or urine
passed out by them without even noticing, as their
senses get weak in the old age. Such Underpads or
Diapers definitely help them in maintaining good
medical and hygienic conditions of their body and
therefore, such items can certainly be said to be “similar


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articles” read with “wadding gauze and bandages for
medical and surgical purpose” etc.

15. It is well settled that if a commodity can by
some rational understanding or analysis be brought or
related to specific entry in the tax laws, the same cannot
be taxed under the residuary entry and what is
important is to apply the Trade Parlance Test or
Common Parlance Test and not to apply the hair
splitting exercise to apply the technical terms.

16. Going by the said well settled principles, this
Court does not find any cogent reason in the impugned
order passed by the Commission except the reason
given by him of relying upon two previous orders passed
by the Commissioner himself in two other cases, the
facts of which are not discussed in detail in para No.2 of
the order. This Court is therefore of the opinion that the
impugned order passed on 11.09.2017 by the learned


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Commissioner does not deserve to be upheld even on
merits and the same is liable to be quashed.

17. Yet another reason not to allow the
impugned order to hold the field is that the same was
passed after seven years of the Department accepting
the previous decision of the Advance Ruling Authority of
the Department itself. The assessee had been collecting
the concessional rate of VAT on the said items for all
these years and had settled its affairs accordingly.
There was no good reason to upset the said decision of
the Advance Ruling Authority after so many years.

18. The impugned order of the Commissioner
also does not seem to hold much water also in view of
the fact that the State Government itself later on
thought it fit to issue the substantive Notification for
various products including the Adult Diapers to be
taxable at the concessional rate of 5.5% only. The
impugned order passed by the respondent-


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Commissioner also appears to be in conflict with the
legislative wisdom displayed by the State Government in
the later Notification dated 31.03.2016, which also
appears to have been issued to do away with the
possibilities of disputes in this regard and to tax these
commodities at concessional rate only in the larger
public interest. The impugned Clarification issued by
the respondent-Commissioner would have not only
upset and disturbed the previous assessment orders
passed in the case of petitioner-assessee but in many
other cases also, because the Clarification issued by the
Commissioner under Section 60 of the Act binds the
Assessing Authorities in all such similar cases.

19. Thus, this Court does not find any substance
in the argument raised by the learned counsel for
Revenue and the reasons assigned in the impugned
order and this Court is of the considered opinion that
the present writ petition deserves to be allowed and the


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impugned order passed by the respondent-
Commissioner at Annexure-A dated 11.09.2014
deserves to be quashed.

20. The petition is accordingly allowed and the
impugned order passed by learned Commissioner at
Annexure-A dated 11.09.2014 is quashed. No order as
to costs.


Sd/-
JUDGE





JS/BMC
Sl.No.42