IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 122 of 2009()
1. STATE OF KERALA, REPRESENTED BY JOINT
... Petitioner
Vs
1. M/S.DORCAS MARKET MAKERS (P) LIMITED,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SMT.K.LATHA
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/08/2009
O R D E R
C.N.RAMACHANDRAN NAIR &
C.K.ABDUL REHIM, JJ.
....................................................................
S.T. Rev. Nos.122,123 & 127 of 2009 &
W.P.(C) No.22316 of 2009
....................................................................
Dated this the 24th day of August, 2009.
ORDER
Ramachandran Nair, J.
The question raised before the Tribunal was whether the
respondent-assessee is entitled to reduced rate of tax on soap
manufactured and sold by it. Admittedly the reduced rate is applicable
to handmade soap and the assessee’s claim is that the soap sold by it is
handmade. Four years assessments commencing from 2000-2001
were completed disallowing the claim, against which first appeals filed
were rejected because for the year 1999-2000 the claim allowed was set
aside and remanded by the Deputy Commissioner in suo moto revision
under Section 35 of the KGST Act. The first appeals were
unsuccessful and when assessee filed second appeals, the Tribunal
remanded one year’s assessment to the officer for conducting enquiry
and for deciding the matter afresh. The Special Government Pleader
appearing for the State contended that the Commissioner constituted an
2
inspection team for conducting inspection on 17.8.2009. In any case
the remanded assessment is not so far revised after enquiry. However,
when appeals against later assessments came before the Tribunal, the
Tribunal allowed the claim based on certain orders from other States
produced by the assessee. It is against these assessments the three
connected revision cases are filed.
2. The case of the State is that the Tribunal should not have
allowed the claim based on orders obtained from other States which is
against the decision of the Tribunal to get an enquiry conducted by the
department on the factual position. Even though counsel appearing for
the assessee wanted time to engage a Senior counsel, we feel evidence
is not available to decide the issue and therefore what is required is
enquiry and collection of evidence and assessee also can adduce the
same during factory-inspection. What is required to be proved is that
the soap marketed in Kerala was handmade soap, which can be proved
only after inspection of the factory and any other place of manufacture.
In the circumstances, the Tribunal rightly remanded the case for the
earlier year and they should not have decided the case on merits for
3
other years without waiting for the result of enquiry and order in the
remanded case. In the circumstances, we allow the revision cases by
setting aside the orders of the Tribunal and that of the first appellate
authority and remand the matter to the Assessing Officer to complete
the assessments after conducting inspection and enquiry by the team
constituted by the Commissioner, within a period of three months from
the date of receipt of copy of this judgment. The subsequent year’s
assessment also should be completed based on enquiry report. A copy
of the detailed enquiry report should be furnished to the assessee before
pre-assessment notice is issued and assessee should be given
opportunity to file reply and adduce evidence. In view of the judgment
in the revision cases, the W.P.(C) has become infructuous and is closed
as such.
C.N.RAMACHANDRAN NAIR
Judge
C.K.ABDUL REHIM
Judge
pms