High Court Kerala High Court

M/S. Giripai Jewellers vs The State Of Kerala on 24 July, 2007

Kerala High Court
M/S. Giripai Jewellers vs The State Of Kerala on 24 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

TRC No. 134 of 2003()


1. M/S. GIRIPAI JEWELLERS,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.KMV.PANDALAI

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN

 Dated :24/07/2007

 O R D E R
                             H.L.DATTU, C.J.   &   K.T.SANKARAN, J.

                                      ------------------------------------------

                                     T.R.C.Nos.134, 138 & 139 of 2003

                                      ------------------------------------------

                                Dated, this the   24th    day of July,  2007


                                                 ORDER

H.L.Dattu, C.J.

Since common questions of law are involved in all these revision

petitions they are clubbed together, heard and disposed of by this common

order.

(2) The assessment years in question are 1994-95, 1995-96,

1996-1997. The Tribunal by its order in T.A.Nos.179 of 2002, 180 of 2002

and 181 of 2002 dated 30th April, 2002 has rejected the appeals filed by the

assessee. That is how the assessee is before us in these tax revision cases.

(3) The questions of law raised by the assessee are as under:

“(a) Section 5A of the KGST Act provides as follows:-

“5A. Levy of purchase tax:- Every

dealer who, in the course of his business,

purchases from a registered dealer or from any

other person any goods, the sale or purchase of

which is liable to tax under this Act, in

circumstances in which no tax is payable under

[Sub-sections (1), (x), (3), (4) or (5) of Section 5]

and either,-

(a) consumes such goods in the

manufacture of other goods for sale or otherwise;


                   or


                                        (b)   use  or  disposes of    such goods

in any manner other than by way of sale in the

State; or

(c) despatches them to any place

outside the State except as a direct result of sale or

purchase in the course of inter-State trade or

TRC.No.134/2003 etc. 2

commerce; shall, whatever be the quantum of the

turnover relating to such purchase for a year, pay

tax on the taxable turnover relating to such

purchase for the year at the rates mentioned in

Section 5.

(2) Notwithstanding anything

contained in sub-section (1), a dealer other than a

casual trader or agent of a non-resident dealer

purchasing goods, the sale of which is liable to tax

under section 5, shall not be liable to pay tax under

sub-section (1) if his total turnover for a year is less

than two lakhs rupees”.

A reading of Section 5A extracted above would go to show that

the said section will apply only in cases no tax is payable under

section 5. Bullion is taxable under section 5. That is why

Government had to issue a notification exempting the State Bank

of India from paying tax under section 5. Thus but for notification

under Section 10 tax is payable under section 5. In other words,

it is absolutely incorrect to say that bullion in the instant case is

not taxable under Section 5. In this beyond the matter is the

Tribunal justified in law in holding that purchase of bullion by the

petitioner is liable to tax under section 5A?

(b) The notification under consideration in the decision of this

Hon’ble Court in Deputy Commissioner (Law) Vs. Supreme

Boards [6 KTR 374], which was relied on by the Tribunal, was

SRO-968/80 which provided for exemption from payment of

sales tax on the sale of goods manufactured by small scale

industries. The sale was exempted when effected by small scale

industries who ever may be the purchaser. However in

Annexure-II notification sale of bullion by State of Bank of India

and Non Resident Indians is exempted only when the sale is to

registered dealers in jewellery. That being the case, is the

Tribunal justified in Law in holding that the decision of this

Hon’ble Court in Supreme Board’s case (6 KTR 374) is squarely

applicable to the facts of this case?

(c) In Annexure-II notification it has been stated in the

explanatory note that the exemption on sale of bullion by NRIs

and State Bank of India is ordered in order to promote jewellery

export from Kerala. Export of jewellery from Kerala is effected

only by the registered dealers in jewellery. When tax is levied

under section 5A on the purchase of bullion by registered dealers

from State Bank of India, the registered dealers stands to loose

the benefit of Annexure-II notification. Is the Tribunal justified in

law in holding that Annexure-II notification is not intended for the

benefit of jewellery exports? Is not the decision of the Tribunal

against the object for which Annexure-II notification was issued

TRC.No.134/2003 etc. 3

by the Government? Is the Tribunal justified in law in holding that

the object behind Annexure-II notification is to discourage

unauthorised purchase of primary gold and thereby to give

quality advantage to the exporters?

(d) Under section 10 of the KGST Act, Government have

powers only to reduce rate of tax or exempt any goods or class

of goods from levy of tax when sold by any specified class of

persons. If the decision of the Tribunal is followed, the effect will

be that by giving exemption to the seller by the Government, the

purchaser will become liable to pay tax. It will in effect result in

shifting of point of levy from sale to purchase. Has the

Government got powers to shift the point of levy of tax under

section 10 of the KGST Act? View from that perspective, does

the decision of this Hon’ble Court in Supreme Board’s case (6

KTR 374) lay down the law correctly? Is it not liable to be

reviewed?

(e) In the decision of the Hon’ble Supreme Court in State of

Tamil Nadu Vs. Kandaswamy (36 STC 191) and of this Hon’ble

Court in Malabar Fruit Products Company Ltd. vs. Sales Tax

Officer (30 STC 537), the circumstances under which section 5A

of the KGST Act and the corresponding provision under the

TNGST Act will be attracted in clear terms. The circumstances

which were considered in those decisions are not the

circumstance of exemption granted by the Government, but they

were circumstances which were beyond the control of the

Government as a result of which tax was not payable by the

sellers. Is the Tribunal justified in law in holding that even a

situation created by the Government will be a circumstance

contemplated under section 5A of the KGST Act to levy tax under

section 5A?

(f) Exactly identical notifications granting exemption from

payment of tax to sellers on sale of goods to specified class of

persons have been issued by the Government. One such

notification is SRO-1727/93. In Schedule VI of the said

notification sale of certain goods to certain dealers are notified as

exempted. For example sale of dyes and chemicals to

coir/handloom industries for use in the manufacture of

coir/handloom products is exempted. But nowhere in the State

the coir/handloom industries which purchase dyes and chemicals

in a circumstance in which no tax is payable by virtue of the

notification is assessed to tax under section 5A. Therefore the

principle regarding applicability of section 5A is applied in a

highly discriminatory fashion. Is the Government justified in law in

applying different principles regarding levy of tax in identical

situations?”

TRC.No.134/2003 etc. 4

(4) The questions of law raised by the assessee are no more

debatable in view of the decision of this Court in the case of M/s.Mayilvahanam

Marketing Shoranur v. Addl. Sales Tax Officer, Ottappalam in O.P.No.34485 of

2000 disposed of on 10th July, 2007.

(5) Following the observations made in the aforesaid decision,

the questions of law raised by the assessee require to be answered against the

assessee and in favour of the revenue.

All pending stay petitions are dismissed.

Ordered accordingly.

(H.L.DATTU)

CHIEF JUSTICE

(K.T.SANKARAN)

JUDGE

vns