IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16206 of 2004(D)
1. THE THIRUMBADI RUBBER COMPANY LIMITED,
... Petitioner
Vs
1. ASST. COMMISSIONER (ASSMT.)I,
... Respondent
2. COMMISSIONER OF COMMERCIAL TAAXES,
3. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.PREMJIT NAGENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :17/06/2009
O R D E R
P.R.RAMACHANDRA MENON, J.
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WP(C) NO. 16206 OF 2004
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Dated this the 17th day of June, 2009
JUDGMENT
The challenge involved in the present Writ Petition is against Ext.P5
and P8 assessment orders passed by the first respondent under the KGST
Act as well as CST Act for the assessment year 1999-2000.
2. The petitioner is marketing centrifuged latex, which is mainly
sold on inter state sale basis. The commodity is actually made from own
latex or purchased from other producers after paying the requisite
purchase tax. By virtue of the prescription under SRO 1731/93, as
amended by SRO 215/97, the rubber was brought in as eligible commodity
for exemption of tax under the CST Act subject to the condition that tax is
levied under the KGST Act, on the purchases of the said rubber. By virtue
of the above, the petitioner was regularly filing the monthly returns and
claiming exemptions from the CST Act. While so SRO 695/03 was
introduced on 25.07.2003 with effect from 01.04.1988 to 09.10.2001,
providing exemption for the ‘field latex’, however holding that if any tax has
been paid, no refund would be effected under any circumstance.
2. The grievance of the petitioner is that the first respondent
WPC NO.16206/2004 2
passed Ext.P5 order under KGST Act, observing that the petitioner was
very much entitled to have exemption by virtue of the stipulation under
SRO 695/2003, however making it clear that the petitioner will not be
entitled to have the benefit of refund. Coming to the case under the CST
Act, the respondent passed Ext.P8 order holding that, in view of the
exemption available to the petitioner, there was no payment of any
purchase tax and in the said circumstance, the petitioner was very much
liable to pay the tax under the CST Act.
3. By virtue of SRO 215/97 dated 01.04.1997 amending SRO
1731/93 (CST), no inter-state sale was taxable, if tax was levied under the
KGST Act. As per Circular No.16/98, if tax was paid on latex under the
Act, no tax would be payable for the latex from 01.04.1997. Since the
petitioner was stated as given exemption for the period in question, with
regard to the liability to pay purchase tax, there is no question of any
sufferance of tax. The course and attitude pursued by the respondents
can’t but be deprecated. This is for the reason that, the petitioner has
already suffered payment of tax by satisfying the liability cast upon him. By
virtue of the stipulations in the concerned SRO, he was not in a position to
have the amount refunded. After denying the benefit of refund, there is no
point seeking to realise further amount in disguise, observing that the
liability under the CST still subsisted.
WPC NO.16206/2004 3
4. In the said circumstance, the liability to pay the CST on the
strength of Ext.P8 order will stand set aside and it is made clear that the
petitioner having already satisfied the liability towards the purchase tax and
unable to get refund, will be entitled to have the benefit of exemption with
respect to CST. Accordingly, the first respondent is hereby directed to
pass fresh orders taking note of the observations as made above; of
course after giving an opportunity of hearing to the petitioner, as
expeditiously as possible; at any rate, within two months from the date of
receipt of a copy of this judgment.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc