State of Haryana vs M S Glaxo India Limited and ... on 17 January, 2013

8/12/2019 State of Haryana vs M S Glaxo India Limited and ... on 17 January, 2013

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Punjab-Haryana High Court

Punjab-Haryana High Court

State Of Haryana vs M/S Glaxo India Limited And ... on 17 January, 2013

VATAP No.77 of 2012 & other connected cases -1- IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of Decision: January 17, 2013

1. VATAP No. 77 of 2012 (O&M)

State of Haryana ...Appellant Versus

M/s Glaxo India Limited and another ...Respondents

2. VATAP No. 78 of 2012 (O&M)


M/s Alembic Limited and another ...Respondents

3. VATAP No. 79 of 2012 (O&M)


M/s B.D. Jagan and another ...Respondents

4. VATAP No. 80 of 2012 (O&M)


M/s Alembic Limited and another ...Respondents

5. VATAP No. 81 of 2012 (O&M)


M/s Glaxo India Limited and another ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA

HON'BLE MS. JUSTICE RITU BAHRI

Present: Mr.Nitin Kaushal, AAG, Haryana, for the appellant.

Mr. Avneesh Jhingan, Advocate

for the respondents.

VATAP No.77 of 2012 & other connected cases -2- 1 To be referred to the Reporters or not? 2 Whether the

Judgment should be reported in the Digest

RITU BAHRI, J.

CM No. 11923-CII of 2012

For the reasons recorded in the application, the delay of 152 days in filing the appeal is condoned. Civil Misc.

application is allowed.


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VATAP No.77 of 2012

This order shall dispose of aforementioned five appeals, as the same are directed against a common order

dated 27.05.2004 passed by the Haryana Tax Tribunal in STA No.294 in respect of the assessment year

2002-03. However, for facility of reference, the facts are being taken from VATAP No.77 of 2012. The

respondents-Company M/s Galxo India Limited was assessed in the year 1996-97 vide order dated

21.01.1998. The Assessing Authority treated the sale of "feed supplements" as "poultry feed" falling in Entry

53 of Schedule B to the Haryana General Sales Tax Act, 1973 (for short '1973 Act') exempted from paymentof sales tax. Subsequently, vide order dated 25.06.2002, Deputy Excise & Taxation Commissioner (I) -cum-

Revisional Authority, Ambala revised the order of Assessing Authority by holding that the sale of one or

other constituent of "poultry feed" could not be taken as "poultry feed" falling in entry 53 of Schedule B to the

1973 Act free from the levy of tax and it is "poultry feed" i.e. a mixtures of proteins, salts and minerals,

vitamins, antibiotics and cocoidiostats, whether such mixture VATAP No.77 of 2012 & other connected cases

-3- contains carbohydrate or not, which alone is tax free and levided the tax of ` 2,35,072.

The Tribunal allowed the appeal and restored the order of Assessing Authority treating the sale of feed

supplements as "poultry feed" falling in Entry 53 of Schedule B of the 1973 Act and exempted the appellant

from payment of tax. The State of Haryana has filed an appeal under Section 36 (8) of the Haryana Value

Added Tax Act, 2003. Learned counsel for the State has pressed the following substantial questions of law:"(I) Whether the Hon'ble Tax Tribunal was justified in under reading and ignoring completely the use of the

words "mixture of" while interpreting entry No.53 of Schedule-B of the Repealed Act and declaring each of

the constituent as mentioned in entry No.53, as "poultry feed"within the meaning of entry No.53 of Schedule

"B" of the Repealed Act?

(II) Whether in the facts and circumstances of the case, any ingredient of mixture, mentioned under entry

No.53, can by itself be held as "poultry feed" within the meaning of entry No.53 of Schedule "B" of the

Repealed Act?"

In Collector of Central Excise, Bangalore v. Tetragon Chemie P. Ltd. (2002) 128 STC 328, Hon'ble the

Supreme Court was examining Entry 2302 of the Central Excise Rules for imposing Nil duty in respect ofpreparation of a kind used in animals feeding, including dogs and cats food' and Entry 2936 prescribing 15%

duty for the vitamins. The Supreme Court held that animal feed supplements were rightly included in the tariff

item No.2302 being preparation of a kind used in animal feeting. VATAP No.77 of 2012 & other connected

cases -4- The Collector of Central Excise has held that the products would be treated on the products

manufactured by the manufacturer being directly used as such for animal feeding. Such claim of the Revenue

was rejected by the Tribunal. The Tribunal held that even feed supplements like the products of the

manufacture would fall in animal feeding under heading 2302. A Division Bench of Gujarat High Court in

Galxo Laboratories (India) Ltd. v. State of Gujrat 43 STC 386 while examining the definition of 'Cattle Feed'

and 'Poultry Feed' has held that both the expressions include not only that food which is supplied to domestic

animals or birds as an essential ration for the maintenance of life but also that feed which is supplied over and

above the maintenance requirements for growth or fattening and for production purposes such as for

reproduction, for production of milk, eggs, meat, wool or feathers and in the case of animals, also for efficient

output of work. The same view has been followed by Andhra Pradesh High Court in the case of Navodaya

Traders v. Commissioner, Commercial taxes 111 STC 125. In Gupta Agencies v. State of Punjab 92 STC 543,

this Court held that it is settled principle of law that for any article to be covered by a particular entry, the test

is whether the article is exclusively or at least predominately used for the particular purpose envisaged in the

legal provision. Hon'ble the Supreme Court in the case of State Level Committee and another v. M/s

Morgardshammar India Ltd. (1996) 10 STC 1 (SC) was examining the provision relating to grant of

exemption under the U.P. Sales Tax Act. Hon'ble the Supreme VATAP No.77 of 2012 & other connected

cases -5- Court while referring to the judgment in the case of Navopan India Ltd., Hyderabad v. Collector of

Central Excise and Customs, Hyderabad (1994) Suppl. 3 SCC 606 has observed as under: "We are, however,

of the opinion that, on principle, the decision of this Court in Mangalore Chemicals and in Union of India v.


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State of Haryana vs M S Glaxo India Limited and ... on 17 January, 2013

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