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.
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T.R.C. No.90 of 2001
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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.
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T.R.C. No.90 of 2001
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ORDER
Dated, 12th day of June, 2007
