IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 ST.Rev..No. 350 of 2006 ------------------------------ TA.152/2003 of STAT ADDL.BENCH, KOTTAYAM .................... REVISION PETITIONER/RESPONDENT/REVENUE: ---------------------------------------------------------------------- STATE OF KERALA REP.BY JOINT COMMISSIONER (LAW) IN-CHARGE, COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRIMUHAMMED RAFIQ. RESPONDENT(S): APPELLANT/ASSESSEE: ---------------------------------------------------------- M/S.CITYMAN CLOTHINGS (INDIA) LTD., KOTTAYAM. ADV. SRI.ARIKKAT VIJAYAN MENON. SMT.MEERA V.MENON. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appln.No.807 of 2006 and S.T.Revn.350 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of November, 2008 O R D E R H.L.DATTU, C.J. Delay condoned. (2) The Revenue being aggrieved by the orders of the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kottayam, in T.A.No.152/2003 dated 31.12.2005 for the assessment year 1997-98 (KGST) is before us in this revision petition filed under Section 41 of the Act. (3) The Revenue has framed the following questions of law for our consideration and decision. They are as under: “A. Whether the appellate tribunal is justified in deleting a turnover worth Rs.25,11,500/= as export sales from the taxable turnover, when the assessee themselves have no such case before the lower authorities? B. Has not the Tribunal exceeded its appellate jurisdiction in the instant case in answering an issue in favour of the assessee without such issue being projected before the lower authorities supported by materials? (4 ) In our opinion, in order to answer the questions of law 2 S.T.Rev.No.350/06 framed by the Revenue, it is desirable to notice the findings and the conclusion reached by the Tribunal on facts in the course of its order. In Para-8 of the order, the Tribunal has stated as under: “8. The last point in issue is regarding the interstate purchase as per check post declaration vide invoice No.703/24-6-97. The assessing authority's version on this point is extracted from page of assessment order as under: “On verification of the declarations received from the Sales Tax Check Posts it is seen that you have effected the following purchases: Invoice No Cethar Industries R.M 703/24697 Tamilnadu Garments Rs.2511500-00 This purchase is not seen included in the purchase account and in the purchase list filed”. According to the appellant this transaction was accounted and the books of accounts of the appellant were called for and verified with reference to the check post declarations as early as on 24.7.97 and found that as accounted and hence the assessing authority's allegation that the transaction was not accounted is incorrect. On examination of the assessment records this contention of the appellant is found acceptable. We verified the records and check post declaration and related invoice filed as pages 103 to 105 in the assessment records. This check post declaration is seen recorded as verified. As per the invoice related to it 9000 pieces of T Shirts and 3500 pieces of Shorts are seen purchased. The copy of bill of lading produced prove that these 9000 and 3500 pieces were exported. Page No.93 is the check-note prepared by the Officer who verified the books of accounts on 24.7.97. 3 S.T.Rev.No.350/06 Photocopy of that check-note is taken and included as page 9 of this appellate order. Check Note 1-879/97-98 Verification of Declaration through Walayar Check Post dt.24.6.97 for Rs.25,11,500/- Sri. Varghese Ninan, Person in charge, Produced the following: Proforma Invoice of Cityman Clothing (India) Ltd dtd 23.6.1997 Irrevocable Documentary letter of Credit No. CT 6/LC9 70449 R dtd 24.6.97 a Standard Chartered Bank,DUBAI. Invoice Nos. 23 DOM dtd. 24.6.97 for 90 “ 24 DOM dtd. 24.6.97 for 50 “ 25 DOM dtd. 24.6.97 for 35 “ 36 DOM dtd 28.6.97 for 20 Bill of Lading No. COK/DXB/006 dt. 27/ “ DEX/COK/037 dt. 27 to “ COK/DXB/010 dt.3.7 Signed Stock Register P.246 248. The purchase has been made on receipt of export order As per this check note, the purchase as per check post declaration vide invoice No.703/24-6-97 for Rs.25,11,500-00 was exported. The copy of bill of lading and other documents related to the export of these goods are seen filed as pages 65 to 91 in the assessment records. Thus the documents which form part of the assessment records for the year 97-98 fully establish that the purchase 4 S.T.Rev.No.350/06 vide bill No.73/24-6-97 was as accounted transaction and that the goods so purchased were exported out of the territory of India and therefore doesn't form part of the turnover of the dealer. Export sales are exempted under Sec.5(3) of the CST Act and hence the transactions attract no tax liability. The finding of the lower authorities on this point is found to be not based on materials on record and hence not sustainable. The assessment estimating the sales turnover corresponding to the purchase vide bill No.703/24- 6-97 is thus found to be illegal and unsustainable and hence we set aside that assessment direct the assessing authority to delete the turnover corresponding to purchase invoice No.703/24-6-97 and the related additions sustained by the first appellate authority”. (5) The conclusion and the findings reached by the Tribunal is purely after going through the records maintained by the dealer in the course of its business. The Tribunal as such has not decided any questions of law. The Tribunal being the final fact finding authority, has perused the accounts maintained by the dealer and has positively come to the conclusion that the turnover worth Rs.25,11,500/- is export sales and therefore, requires to be deleted from the taxable turnover of the dealer. (6) The parameters of the revisional powers of this Court under Section 41 of the Kerala General Sales Tax Act is limited. This Court can only interfere with the orders passed by the Tribunal, if the Tribunal has erroneously decided the questions of law or has failed to decide any questions of law or if the findings and conclusions reached by the 5 S.T.Rev.No.350/06 Tribunal on facts are perverse. (7) In our opinion, the reasonings and the conclusions reached by the Tribunal is purely based on the records maintained by the dealer in the course of its business. Since there is no question of law involved in the revision, we decline to entertain this revision petition and the same is accordingly dismissed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl