IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 ST.Rev..No. 120 of 2007() ------------------------- TA.65/2005 of S.T.A.TRIBUNAL,ADDL.BENCH,KZD. .................... REVISION PETITIONER/APPELLANT/ASSESSEE. ----------------------------------------------------------- PARISONS ROLLER FLOUR MILLS PVT.LIMITED, KOZHIKODE. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN RESPONDENT(S): RESPONDENT/REVENUE. ---------------------------------- STATE OF KERALA, REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-695033. BY G.P. SRI.V.K.SHAMSUDEEN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... S.T. Rev. No.120 of 2007 .................................................................... Dated this the 27th day of March, 2009. ORDER Ramachandran Nair, J. The question raised is whether broken wheat produced and sold by the petitioner is a wheat product falling under Entry 172 of the First Schedule to the KGST Act or is wheat as such covered by Second Schedule Entry providing for wheat. We have heard Sri.S.Anil Kumar, counsel appearing for the petitioner and Government Pleader appearing for the respondent. 2. The Tribunal relying on decision of Supreme Court in RAJASTHAN ROLLER FLOUR MILLS ASSOCIATED & ANOTHER V. STATE OF RAJASTHAN & OTHERS ETC. (91 STC 408) held that broken wheat is a wheat product liable to be assessed under Entry 172 of the First Schedule at 4%. The relevant entry provided in Second Schedule covers "wheat" as such. The broken wheat is processed wheat whereunder wheat is cleared of the husk and 2 broken into three or four pieces. In fact, only certain variety of wheat can be subjected to this process and admittedly, it is a value added product. In commercial parlance it is different from wheat as such and therefore, broken wheat cannot be treated as wheat as such. This rules out petitioner's claim for assessment of broken wheat under Second Schedule as wheat. Even though counsel for the petitioner compared broken wheat with broken rice and submitted that identity and nature of use of broken wheat is the same as wheat itself, we are unable to accept this contention because Entry 172 covers "wheat products i.e. to say, Maida, Atta, Sooji, Rava and the resultant bran." Counsel for the petitioner submitted that Sooji referred to in Entry 172 is nothing but Rava. However, these are only words of Hindi and are used to describe wheat in different forms. The Legislature certainly cannot be expected to use different words to explain the same item namely, Rava. 3 Therefore, Rava is not certainly same as Sooji and Sooji used in the context should only mean wheat pieces of higher dimension than Rava. This will certainly come within the category of broken wheat. All the wheat products enumerated in Entry 172 are wheat in various forms or constituents of wheat without any addition to it whatsoever. Therefore, broken wheat which is yet another form of wheat, is rightly classifiable under Entry 172 taxable at 4%. We, therefore, hold that the broken wheat produced and sold by the petitioner attracts tax at 4% under Entry 172 of the First Schedule to the KGST Act. 3. Though petitioner is a small scale industrial unit entitled to concessional rate of tax on interstate sale, such lower rate is declined for the reason that broken wheat is not manufactured product. We do not think department can take contradictory stand with regard to identity of the item. When the item is treated as product of wheat, the 4 petitioner is entitled to concessional rate on interstate sale also. Therefore, we direct assessment of interstate sales turnover of broken wheat at 4%, if assessee is entitled to benefit of notification for interstate sale of products. The S.T. Revision case is disposed of upholding the classification of the product by the Tribunal but with direction to grant concessional rate at 4% on interstate sale of broken wheat without C Form. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms