C.N. Ramachandran Nair, J.
1. Appeal is filed against the order of the Commissioner of Commercial Taxes issued under Section 94 of the VAT Act holding that the appellant is not entitled to payment of tax at compounded rate in respect of works contract executed in the form of supply and installation of kitchen cabinet. We have heard counsel appearing for the appellant and the Government Pleader appearing for the respondents.
2. The charging section under the Kerala Value Added Tax Act, hereinafter called 'the Act' for works contract is Section 6(1)(e) and (f), respectively. While Clause (e) provides that if the transfer of goods involved in the execution of works contract is in the form of goods as such then the rate of tax applicable will be the rate applicable to such goods as provided under Clause (a) or (d). On the other hand, if the transfer of goods involved in the execution of works contract is not in the form of goods but in some other form the rate of tax applicable will be at 12.5 per cent. Referring to the above provisions, the Commissioner in the impugned clarification issued under Section 94 of the Act held that items supplied in the course of execution of supply and installation of kitchen cabinet are in the form of goods which attract tax at the rate provided under Clause (a) or (d) of the charging section. The further finding of the Commissioner is that by virtue of second proviso contained in Section 8(a)(ii) no compounding is permissible for the tax payable in respect of supply and installation of kitchen cabinet. The Finance Act, 2009 seeks to substitute Section 8(a)(ii) with the following provision:
(ii) any works contractor not falling under Clause (i) above may, at his option, instead of paying tax in accordance with the provisions of the said section, shall pay tax at three per cent of the contract amount after deducting the purchase value of goods excluding freight and gross profit element consigned into the State on stock transfer or purchased from outside the State and for the purchase value of goods so deducted shall pay tax at the scheduled rate applicable to such goods.
3. Counsel for the appellant submitted that the Commissioner vide circular 3/2009 has instructed the departmental officers to follow the provision in the bill for payment of tax. On going through the original provision and the proposed amendment, we notice that the purpose of the amendment introduced by the Finance Bill, 2009 is to permit compounding by those who are registered under the CST Act and who bring goods from outside Kerala on condition that the purchase value of the goods brought from outside will be subject to the schedule rate of tax. In other words, works contractors registered under the CST Act are also entitled to the benefit of compounding except on the value of the goods brought from outside the State on which they pay tax at the rate applicable to such goods in the Schedule.
4. The question now to be considered is whether the appellant's claim for payment of tax at the compounded rate on the entire contract amount under Section 8(a)(i) or (ii) is permissible or not. We find that even after the substitution of Clause (ii) by a new provision by the Finance Bill, 2009, the second proviso to Section 8(a)(ii) still bars a works contractor from claiming compounding if goods in the course of execution of works contract are transferred in the same form. In other words, if the works contract involves supply of any goods in the form of goods as such, then compounding is not permissible and the item will attract tax at the rate provided under Clause (a) or (d) of the Act.
5. Counsel for the appellant has explained the nature of work executed by the appellant. On hearing the nature of work, we feel the Commissioner's impugned order is only partly correct because fabrication, supply and installation of kitchen cabinet partly involve works contract and it is partly supply of goods depending upon the nature of contract. It is common knowledge that zinc made of metal, electrical chimney manufactured by reputed companies, both from India and abroad, cooking ranges (electrical), etc., are supplied in the course of execution of works contract. In fact there are companies engaged in the manufacture of kitchen cabinet of standard type which can be fitted into any kitchen. Some of the contracts may even provide for supply of zinc taps, exhaust fan for the chimney, etc. It is common knowledge that many of the items are factory-made and cannot be manufactured or supplied by contractors like the appellant. So much so the standard manufactured items bought and supplied in the execution of works contract attract tax at the scheduled rate. However, the provision for supply of such goods in the execution of works contract does not make the entire contract of fabrication, supply and installation of kitchen cabinet as sale of goods. As already stated works order for installation of kitchen cabinet varies from customer to customer and it is for the assessing officer to examine whether the contract is one for supply of standard items on which tax is payable at the scheduled rate or whether work is a divisible work, one for supply of specified items at agreed rate and the balance for execution of work like site fabrication, and installation of kitchen top, partitions, etc. Clause (ii) introduced in the Finance Bill, 2009 contemplates divisible nature of contract where certain items of goods are brought from outside either by way of inter-State purchase or stock transfer and used in the work which will attract tax at the scheduled rate on the purchase value, while the tax on the balance portion pertaining to execution of works contract is assessable at the compounded rate. We are of the view that Clause (ii) applies in respect of every divisible contract and even where specified goods are locally procured such goods will attract tax at scheduled rate as provided under Section 6(1)(e) of the Act and the balance portion of work that is fabrication, supply and installation of kitchen cabinets with top, fittings, partitions, etc., by the appellant will be assessed as works contract. In view of the proposed amendment, and in view of the discussion above, we are of the view that there cannot be any absolute bar against payment of tax at compounded rate on the works executed involving fabrication, supply and installation of kitchen cabinets. While the Commissioner's finding that in respect of supply of specified goods tax is payable at the rate provided in the Schedule is correct, we vacate that part of the order where he says that no compounding is permissible in respect of remaining work relating to fabrication, supply and installation of kitchen cabinets.
6. We therefore dispose of the appeal by partly upholding the impugned order of the Commissioner issued under Section 94 of the Act and by directing the assessing officer to consider eligibility for compounding depending upon the nature of contract executed in each case and to make assessment accordingly.