State of Kerala Vs. M/S. Roll Expro Enterprises - Court Judgment

IN THE HIGH COURT OF KERALAATERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE21T DAY OF MAY2014/31ST VAISAKHA, 1936 ST.Rev..No. 14 of 2013 () ------------------------------- AGAINST THE ORDER

IN TA142011 of S.T.A.TRIBUNAL,ADDL.BENCH,KOZHIKODE. DATED2809-2012 REVISION PETITIONER/RESPONDENT/REVENUE: ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY COMMISSIONER OF LAW COMMERCIAL TAXES, ERNAKULAM. BY SR. GOVERNMENT PLEADER SRI. SUDHEESH KUMAR RESPONDENT(S)/APPELLANT/ASSESSEE: ------------------------------------------------------------------ M/S. ROLL EXPRO ENTERPRISES, 14/962, AZHIKAL ROAD, PALLIKANDY KOZHIKODE, PIN-673003. BY ADV. SRI.T.M.SREEDHARAN (SR.) BY ADV. SRI.V.P.NARAYANAN BY ADV. SMT.BOBY M.SEKHAR BY ADV. SMT.DIVYA RAVINDRAN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON2105-2014, ALONG WITH STRV. 15/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ST.Rev..No. 14 of 2013 APPENDIX PETITIONER'S EXHIBITS ------------------------------------ ANNEXURE A - COPY OF THE ASSESSMENT ORDER

DATED2510.2007 PASSED BY THE SPECIAL TEAM NO.VI COMMERCIAL TAXES, KOZHIKODE UNDER SECTION17 OF THE KGST ACT1963 ANNEXURE B - COPY OF THE ORDER

DATED289.2012 PASSED BY THE KERALA SALES TAX APPELLATE TRIBUNALADDITIONAL BRANCH KOZHIKODE IN T.A.NO.14/2011. RESPONDENT'S EXHIBITS --------------------------------------- NIL // TRUE COPY // P.A. TO JUDGE sou. K. M. JOSEPH & P.B. SURESH KUMAR, JJ ---------------------------------------------------- ST.Rev. No. 14 OF2013and ST.Rev. No. 15 OF2013---------------------------------------------------- Dated this the 21st day of May, 2014

JUDGMENT

K.M. Joseph, J The cases being connected and respondent assessee being the same, and the issues pressed before us also being the same, we dispose of both the cases by a common judgment.

2. ST.Rev. No.14 of 2013 is filed against the order passed by the Sales Tax Appellate Tribunal, Additional Branch, Kozhikode in T.A. No.14 of 2011 dated 28.9.2012. It relates to the assessment year 2003-2004. ST.Rev. No.15 of 2013 is filed against the order passed by the Sales Tax Appellate Tribunal, Additional Branch, Kozhikode in T.A. No.15 of 2011 dated 28.9.2012. It relates to the assessment year 2004-2005.

3. By the impugned orders, the Tribunal has remanded the matter to the Assessing Officer to verify the product of the assessee and it is ordered that if it is found that the item produced is laminated brown paper and not laminated sheet, it has to adopt tax at 4%. ST.Rev. 14/13 & 15/13 2 4. The case of the assessee was that the product sold by the assessee is laminated brown paper for packing books etc. Therefore according to the assessee, since the product is a packing material, as per entry 102 to the first Schedule to the KGST Act, it is taxable at the rate of 4%.

5. On the other hand, the case of the Department is that it is actually laminated sheet, falling under the residuary entry.

6. We heard learned Government Pleader and learned counsel for the assessee.

7. Actually in this case, the assessment was completed under section 17(D) of the KGST Act, 1963. The team assessed the product as falling in the residuary entry and taxed it at 12%. Interest was also levied under section 23 (3A). Entry 102 reads as follows : Sl. Description of Goods Point of levy Rate of tax - % No. Packing cases and packing materials At the point of first sale in including cork, cork sheet, gunny the State by a dealer who bags, shooks, tea chedts, waste paper, is liable to tax under 102 wooden boxes, wooden shavings, section 5. 4 wooden crates, wooden cable, drum or other materials notified by Government in this behalf. Explanation.- Planks panels and battens when assembled will form tea chest or packing case will come under packing cases for the purpose of this entry. ST.Rev. 14/13 & 15/13 3 Therefore, the question is whether the product of the assessee falls under entry 102 or not. For this purpose, the matter has already remitted back by the Tribunal. But at the same time, we notice that the Tribunal has found that the product sold by the assessee is laminated brown paper. It is for deciding the same, the matter was remitted back by the Tribunal. In such circumstances, we find that the finding rendered as above that the product of the assessee is laminated brown paper cannot be sustained. Accordingly, we vacate the finding. Otherwise we see no reason for the petitioner to challenge the remand made.

8. As regards the order of the Tribunal by which it set aside the interest levied under section 23 (3A), as pointed out by the learned counsel for the assessee, it is a case where the turnover was disclosed by the assessee but it was shown as taxable at lower rate. On a perusal of section 23 (3A) of the Act, we do not see how the petitioner can impugn the said finding either. In such circumstances, both the revisions are disposed of as follows: The Revisions are partly allowed. We set aside the finding in the impugned orders that the product sold by the assessee is laminated brown paper and ST.Rev. 14/13 & 15/13 4 it is for the authority to go into the question as to whether the product sold is laminated brown paper or laminated sheet and tax the same accordingly. Sd/- K. M. JOSEPH, JUDGE Sd/- P.B.SURESH KUMAR, JUDGE. sou. // True copy //