IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 525 of 2004()
1. STATE OF KERALA, REP. BY THE
... Petitioner
Vs
1. M/S.HILL TOP BAR ATTACHED HOTEL
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.N.D.PREMACHANDRAN
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :23/07/2008
O R D E R
H.L.Dattu,C.J. & A.K.Basheer,J.
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S.T.Rev.No.525 of 2004
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Dated, this the 23rd day of July, 2008
ORDER
H.L.Dattu,C.J.
Though the revision petition is posted for admission, by
consent of learned counsels appearing for the parties to the lis, the matter
is taken up for hearing, since the legal issue framed by the Revenue is
now covered by a decision of this Court.
2. The Revenue is before us, being aggrieved by a portion of
the order passed by the Sales Tax Appellate Tribunal in T.A.No.320 of
2001 dated 24th February, 2003. In the orders passed by the Tribunal, it
was held that the sales turnover of soda and soft drinks at Bar attached
hotels would fall under Entry 40 of the First Schedule to the Kerala
General Sales Tax Act, 1963 (“Act” for short) and it is taxable only at
6%.
3. The Revenue has framed the following question of law
for our consideration and consequent decision. The same is as under:
“1) Whether on the facts and in the circumstances
of the case, the Tribunal is justified in deciding that sales
turnover of soda and soft drinks at bar attached hotel will
fall under entry 40 of the First Schedule and taxable only @
6%”.
S.T.Rev.525 of 2004 – 2 –
4. A Full Bench of this Court in the case of Lazarus Alosius
v. State of Kerala [2005 (2) KLT 604] had occasion to consider the
specific issue canvassed by the learned counsel for the Revenue before us.
In the said decision, the Court had stated that the sales turnover of soda
and soft drinks at Bar attached hotels will fall under Entry 87 of the First
Schedule to the Act.
5. The observations made by the Full Bench in the aforesaid
decision is as under:
“Relevant is the word ‘beverages’. In generic sense,
any potable liquid except water is a beverage. Beverage
may be alcoholic or non-alcoholic. Again, among
non-alcoholic, it may be not beverage like tea, coffee or
cold beverage like cola and soda. Beverages like cola and
soda come within the meaning of ‘aerated waters’. Aerate is
process of exposing product to air for the purpose of
mixing with air. Water mixed or charged with gas or air
under pressure is ‘aerated water’. Soda is aerated with
carbon dioxide. Thus, it is clear that ‘aerated water’ is a
special word to the general word ‘beverage’ and soda is a
specific word to the word ‘aerated water’. We need to
examine whether the Legislature intended to employ the
generic word ‘beverage’ in Entry 40/46 so as to include
soda therein. The word ‘beverages’ in the above Entries
cannot be stretched to cover all beverages. It is controlled
by the preceding word ‘cooked food’. Soda is not a
beverage, which can be said to be egusdem generis with
S.T.Rev.525 of 2004 – 3 –
cooked food. Only drinks like tea and coffee can be
brought within the meaning of ‘beverages’ as being related
and inclusive of cooked food Entries 40/46. Soda cannot be
brought within the Entries 40/46 of Schedule I of the
K.G.S.T.Act”.
6. In view of the law declared by the Full Bench of this
Court in the case of Lazarus Alosius (supra), the revision petition requires
to be allowed and the question of law framed by the Revenue requires to
be answered in favour of the Revenue and against the assessee.
Accordingly, we do so.
Ordered accordingly.
H.L.Dattu
Chief Justice
A.K.Basheer
Judge
vku/-