Sherifa Rubber Industries Vs. State of Kerala - Court Judgment

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- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - 124/88/td dated august 31, 1988 was relied upon as well as s. we fail to understand that after observing this as above, it is also plain and crystal clear from the statutory provisions of s.v.v. kamat, j.1. the assessee-petitioner--sherifa rubber industries, chalambra--is admittedly a manufacturer and seller of hawai chappals. we are concerned with the assessment year 1988-89 (from april 1, 1988 to march 31, 1989). the assessing authority has disallowed the claim of the assessee claiming concessional rate of tax of 3 per cent on the sale turnover of chappals. while doing so, the government order g.o. (ms) no. 124/88/td dated august 31, 1988 was relied upon as well as s.r.o. no. 968/80. this was rejected by the assessing authority obviously because it did not govern the situation referable to the assessment year in question in the proceedings.2. the appeal before the deputy commissioner (appeals), kozhikode, was dismissed.3. the only question that requires determination and that too also, according to the tribunal, is whether the assessee is entitled to concessional rate of tax as per s.r.o. no. 641/81 in respect of the purchase turnover of rubber used for the manufacture of rubber products for the assessment year in question. there is no dispute that the assessee is a small-scale industrial unit engaged in the manufacture of hawai chappals. the tribunal has also further recorded that the purchase turnover of rubber used for the production of chappals is taxable at the rate of 3 per cent as per s.r.o. no. 641/81.4. even if the text of the said s.r.o. no. 641/81 is examined, the position is beyond doubt. the text is reproduced hereinbelow :'in exercise of the powers conferred by section 10 of the kerala general sales tax act, 1963 (15 of 1963), the government of kerala, having considered it necessary in the public interest so to do, hereby make a reduction in the rate of tax payable under the said act on the purchase of rubber by manufacturers of finished rubber products within the state for use of such rubber by such manufacturers in the manufacture of finished rubber products within the state from five per cent to three per cent.'5. in fact, the situation should really end in favour of the assessee at this stage only.6. we find from the judgment of the tribunal a reference to s.r.o. no. 1516 of 1990, emphasising that it is effective only from january 1, 1989 for the assessment year 1989-90 onwards and therefore not allowable. it was submitted before the tribunal that it is s.r.o. no. 641/81 that would govern the situation.7. even then the tribunal has proceeded to rely on s.r.o. no. 1516 of 1990 [g.o. (p) no. 152 of 1990 dated november 2, 1990] and especially the explanation thereto. after referring to the said explanation, the tribunal even observes that s.r.o. no. 641/81 is applicable only in cases where rubber in any form is used in the manufacture of any rubber product by such rubber manufacturers. we fail to understand that after observing this as above, it is also plain and crystal clear from the statutory provisions of s.r.o. no. 641/81, and further recording a clear-cut conclusion that the authority will also allow the concessional rate of 3 per cent on the purchase turnover of rubber used for the production of finished products--chappals, the tribunal unnecessarily went on to examine entry no. 76 of the first schedule. even if entry no, 76 is taken into consideration, which was wholly unnecessary in the contest, the situation would not change because entry no. 76 is generic applicable to footwears of all varieties. in fact, it would be found that s.r.o. no. 641/81 deals with the specific situation referred to therein. the words have to be understood not in the generic sense of entry no. 76, but with special reference to 'the rate of tax payable under the said act on the purchase of rubber by manufacturers of finished rubber products within the state' will have special significance in the context, in the nature of an exception to the general situation to be found in entry no. 76. in our judgment, in fact, there was no reason to travel beyond the context of s.r.o. no. 641/81 as stated above.for all the above reasons the tax revision case succeeds and accordingly the claim of the assessee with regard to the assessment year 1988-89 is allowed in terms of s.r.o. no. 641/81. ordered accordingly.