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State Of Kerala vs Indian Oxygen Ltd on 12 June, 2007

Kerala High Court
State Of Kerala vs Indian Oxygen Ltd on 12 June, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

TRC No. 90 of 2001()



1. STATE OF KERALA
                      ...  Petitioner

                        Vs

1. INDIAN OXYGEN LTD,ERNAKULAM
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SMT.S.K.DEVI

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

 Dated :12/06/2007

 O R D E R


                    H.L. DATTU, C.J.  &   K.T. SANKARAN, J.

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

                               T.R.C. No.90 of 2001

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

                      Dated, this the 12th  day of June, 2007


                                            ORDER

H.L. DATTU, CJ.

This tax revision case arises out of an order passed by the Sales

Tax Appellate Tribunal, Ernakulam in T.A.No.665/1992 dated 30.9.2000.

2. The Revenue has raised the following questions of law for our

consideration and decision. The same is as under:

“a) Is the Tribunal correct in law, in holding that nitrous

oxide is not a chemical as the same is in gaseous form?

b) Is not the Tribunal in the instant case in error in

classifying nitrous oxide as an unclassified item overlooking

the specific entry in which it could be comfortably

accommodated for the purpose of taxation?”

3. Shri Ashokan, learned Special Government Pleader (Taxes)

would bring to our notice the observations made by a Bench of this Court

in the decision in State of Kerala v. India Oxygen Ltd. – [2003] 129 STC

471. In the said decision the court, without deciding whether it is a

chemical or not, has remanded the matter to the Tribunal. The

observations made by this court is as under:

“We uphold the finding of the Tribunal in that regard. So far

as “nitrous oxide” is concerned, we are of the view that the

matter must go back to the Tribunal for considering the

TRC No. 2

question whether “nitrous oxide” will fall under any of the

other entries in the First Schedule to the Act. We therefore

set aside the order of the Tribunal in respect of nitrous

oxide and remit the matter to the Tribunal for consideration

whether this item will fall under any of the specific entries in

the First Schedule to the Act including “medicine”. The

Tribunal will decide this question afresh with notice and

opportunity to the respondent-assessee.”

4. We are bound by the decision of a Division Bench of this Court.

5. Respectfully following the observations made by a Division

Bench of this Court, this revision petition is disposed of as under:

i) The order passed by the Tribunal in T.A.No.665

of 1992 dated 30.9.2000 is set aside.

ii) The matter is remitted back to the Tribunal to

reconsider the issue as observed by this court in the case

of State of Kerala v. India Oxygen Ltd. – [2003] 129 STC

471 after affording an opportunity of hearing to both the

parties.

With these observations and directions, this tax revision case is disposed

of. Ordered accordingly.

H.L. DATTU,

CHIEF JUSTICE.

K.T. SANKARAN,

JUDGE.

mt/-

TRC No. 3

H.L. DATTU, C.J. &

K.T. SANKARAN, J.

———————————————-

T.R.C. No.90 of 2001

———————————————–

ORDER

Dated, 12th day of June, 2007

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