High Court Kerala High Court

Premier Tyres Limited vs State Of Kerala Represented By on 30 May, 2007

Kerala High Court
Premier Tyres Limited vs State Of Kerala Represented By on 30 May, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST Rev No. 221 of 2005()


1. PREMIER TYRES LIMITED,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.M.PATHROSE MATTHAI (SR.)

                For Respondent  :GOVERNMENT PLEADER

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

 Dated :30/05/2007

 O R D E R
                                  H.L.Dattu,C.J. & K.T.Sankaran,J.

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

                                         S.T.Rev.No. 221 of 2005

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

                                 Dated, this the 30th day of May, 2007


                                                    ORDER

H.L.Dattu,C.J.

In this revision petition, we are concerned with the assessment year

1995-96. The commodity in dispute is Nylon Tyre cord fabric. The assessee, while filing

its annual return, had claimed exemption since, according to the assessee, the

commodity in which it is dealing would fall under Entry 11 of Third Schedule to the

Kerala General Sales Tax Act (“KGST Act” for short). It is apropos to notice here itself

that the commodity falling under Entry 11 of Third Schedule to the Act is exempt from

payment of tax by virtue of the provisions of Section 9 of the Act. The assessing

authority has rejected the claim and it is of the view that it is unscheduled goods and

required to be taxed under Entry 156 of First Schedule to the Act. This view of the

assessing authority is accepted by the first appellate authority. The Tribunal, to say the

least, has most mechanically accepted the views of the assessing authority and that of

the appellate authority without there being any discussion whatsoever. Aggrieved by the

said order of the Tribunal, the assessee is before us in this revision.

2. Sri.Pathros Matthai, learned Senior Counsel appearing for the

assessee would submit that the Tribunal without considering the issues, i.e., whether

the Nylon Tyre cord fabric is an item coming under Entry 11 of Third Schedule to the Act

and, therefore, exempt under Section 9 of the Act and whether the assessee is liable to

pay interest under Section 23(3) of the Act, could not have mechanically confirmed the

orders of the assessing authority and the appellate authority for the assessment year

1995-96.

S.T.Rev.No.221 of 2005 – 2 –

3. Sri.V.V.Ashokan, learned Special Government Pleader (Taxes) sought

to justify the orders passed by the Tribunal, may be knowing fully well that the said order

can never be justified.

4. We have gone through the orders passed by the Tribunal. The Tribunal

merely extracts whatever that has been said by the assessing authority and the first

appellate authority. Without any discussion whatsoever, it mechanically proceeds to

confirm the reasoning and conclusions reached by the assessing authority and the first

appellate authority. In our opinion, this is not the way in which the Tribunal is required to

decide a statutory appeal filed by an aggrieved person/assessee. Apart from this, the

Tribunal is the last fact finding authority and the Tribunal, especially when an issue

arises for consideration about exigibility or otherwise of an article/commodity it is

required and expected to apply its mind and say one way or the other, whether the

particular commodity comes under any one of the entries under the Schedule to the Act.

In the instant case, as we have already stated, the Tribunal has not even considered the

primary issue that was raised by the assessee. In view of all these, we are of the firm

view that the order passed by the Tribunal is to be interfered with and the matter

requires to be remitted back to the Tribunal for a fresh decision in accordance with law

and after affording an opportunity of hearing to both sides. Accordingly, the following:

Order

(i) The revision petition is allowed.

(ii) The orders passed by the Tribunal for the assessment year 1995-96 is set

aside.

(iii) A direction is issued to the Tribunal to decide the issue whether the Nylon

Tyre cord fabric is an item falling under Entry 11 of the Third Schedule to the

K.G.S.T.Act and whether the petitioner is liable to pay interest under Section 23(3) of

the Act in view of the orders of deferment passed by the Board for Industrial Financial

S.T.Rev.No.221 of 2005 – 3 –

Reconstruction (BIFR). While answering the aforesaid issues, the Tribunal shall afford

an opportunity of hearing to both sides. All other contentions are left open. Ordered

accordingly.

H.L.Dattu

Chief Justice

K.T.Sankaran

Judge

vku/DK.