IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 333 of 2004()
1. MODERN ARECANUT COMPANY,
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
For Petitioner :SRI.N.D.PREMACHANDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :24/07/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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S.T.Rev.No.333 of 2004
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Dated, this the 24th day of July, 2008
O R D E R
H.L.Dattu, C.J.
The assessee calls in question the correctness or otherwise
of the orders passed by the Tribunal in T.A.No.131 of 2003 dated
30-4-2003.
2. The assessee has framed the following questions of law
for our consideration and decision. They are as under:
a). Whether on the facts and circumstances of the case the
Tribunal is right in law in the light of the provisions
contained in Annexure.A notification hold that the assessee
is not entitled to refund of the tax already paid and if
wrongly refunded the same can be recovered from the
petitioner?b. Whether on the facts and circumstances of the case the
Tribunal has erred in law in denying to the petitioner the
benefit of tax reduction granted by Annexure A notification
for the reason that the assessee has paid the tax at the due
date from his own pocket without collecting the tax from his
customers?c). Whether on the facts and circumstances of the case the
Tribunal failed to consider the fact that the petitioner has
not collected any tax and whatever amount paid towards
tax is from his own pocket and the ban provided in the
notification is not applicable at all on a time interpretation
of Annexure A notification?S.T.Rev.No. 333/2004 -2-
d). Whether on the facts and circumstances of the case, the
Tribunal is right in law in following the decision of the
Hon’ble High Court in W.A.No.49 of 2003, at a time when
the SLP is pending before the Hon’ble Supreme Court?3. In our view, the questions of law framed by the
assessee is no more debatable in view what has been said by a Division
Bench of this Court in the case of Kokkala Arecanut Commission
Agent Association Vs. The Commissioner of Commercial Taxes {2003
(11) KTR 316}. In the said decision this Court has held as under:
” It is not an incident for the liability to tax that the tax
should be collected by a dealer. In respect of goods
which are taxable at the point of first sale in the State by
a dealer liable to tax under Section 5 by virtue of the
provision of Section 22 of the Act such dealer can collect
tax on his sale. Whether the dealer collects tax or not, he
has to pay tax on his taxable turnover. In the case of a
dealer, whose transaction is liable to tax only at the last
point of purchase, there is no question of collection of tax
by that dealer from anybody on that point. In spite of
that he has to pay tax on his taxable turn over. So, the
collection of tax is not relevant, so far as the liability is
concerned.The notification is very clear that it clearly provides that
if the dealer has already paid tax, it shall not be
refunded. Admittedly the appellants have paid tax on
their purchase turnover, at the time of issuance of the
notification, and therefore, in view of this clause, they are
not entitled to get refund of the excess tax paid. It is a
well-recognized cannon in the interpretation of statutes
that the question of interpretation of statute, rule or
notification arises only when the statutory provision isS.T.Rev.No. 333/2004 -3-
ambiguous. The Act in question is a taxing statute and,
therefore, must be interpreted as it reads, with no
additions and no subtractions, on the ground of
legislative intendent or otherwise. The task of the court
is to construe the provisions of taxing enactments
according to ordinary and natural meaning of the
language used and then to apply that meaning to the facts
of the case and int hat process if the tax-payer is brought
within the net he is caught, otherwise he has to free”The clarification issued by the Commissioner of
Commercial Taxes, has clearly stated that the intention
of the notification is very clear that the retrospective
operation given to the reduction of the rate of tax shall
not result in any outflow of money from the Government
exchequer. It is also stated that if the argument of
counsel for the appellants that the last paragraph of the
notification is applicable only in the case of dealers, who
have collected tax and paid to the Government, is
accepted, it will lead to discriminating dealers paying tax
at the point of sales against dealers who are paying tax
at the point of purchase, attracting article 14 of the
Constitution of India.There is no justification for reading the two clauses of the
last paragraph of the notification in conjunction. A
reading of those clauses itself will show that it
contemplates two different situations. One regarding the
tax collected, and the other regarding the tax paid.
Unless we read into the latter clause the word
“collected” occurring in the first clause, the appellants
cannot succeed in their case. Reading into the latter
clause the word “collected”, when that clause does not
warrant such an interpretation is not justified.”
4. In view of the declaration of the law made by the
Division Bench of this Court which has become final as far as this Court
S.T.Rev.No. 333/2004 -4-
is concerned, the questions of law framed by the assessee requires to be
answered against the assessee and in favour of the Revenue.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
MS