Lion Dates Impex Pvt Ltd vs Deputy Commissioner(Appeals) on 14 June, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OT.Appeal.No. 4 of 2010()


1. LION DATES IMPEX PVT LTD.,
                      ...  Petitioner

                        Vs



1. DEPUTY COMMISSIONER(APPEALS)
                       ...       Respondent

2. COMMERCIAL TAX OFFICER(AUDIT ASSESSMENT)

3. THE STATE OF KERALA, REPRESENTE BY THE

                For Petitioner  :SMT.JEENA JOSEPH

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :14/06/2010

 O R D E R
                                                              C.R.
                 C .N. RAMACHANDRAN NAIR, &
                       P.S. GOPINATHAN, JJ.
                 --------------------------------------------
                    O.T. APPEAL No. 4 OF 2010
                 --------------------------------------------
                Dated this the 14th day of June, 2010

                              JUDGMENT

Ramachandran Nair, J.

The challenge is against the clarification issued by the

Commissioner under Section 94 of the KVAT Act, declaring processed

oats as an item falling under item 49 of Third Schedule to the Act.

Counsel for the appellant contended that oats is covered by item 12 of

First Schedule to the Act which provides among other things oats under

the head coarse grains. Government Pleader has produced Notes on

Chapter 10 under the Customs Tariff Act which specifically states as

follows:

The Chapter does not cover grains which have been hulled
or otherwise worked. However, rice, husked, milled,
polished, glazed, parboiled or broken remains classified in
heading 1006.

We notice that though con as a coarse grain is also covered by

exemption clause 12 of First Schedule, conflake is in entry 49(3) of

Third Schedule to the Act. The Legislative intention is clear from the

different treatment, the products are given from coarse grains.

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Therefore grains in the coarse form only are covered by the exemption

clause 12 of Third Schedule. We have considered the very same

argument raised by counsel in this case in the decision in M/S.

COMMERCIAL TAXES, (2008) 3 K.L.T. 254. We find that

Commissioner has taken the view consistent with what we have taken

in the above decision. Consequently following our judgment above

referred, we uphold the order of the Commissioner and dismiss the

OTA. Tax necessarily has to be demanded in accordance with

Commissioner’s clarification. Demand has to be modified in line with

the Commissioner’s order. If the appellant has collected more tax, the

assessing officer will deal with such collection in accordance with

statutory provisions. We make it clear that we have not dealt with

incidence of tax with regard to processed oats sold under brand name

because that is not an issue decided in the impugned order of the

Commissioner.

(C.N.RAMACHANDRAN NAIR)
Judge.

(P.S. GOPINATHAN)
Judge.

KK

OTA 4/2010    3