IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 SALES TAX APPEAL No. 13 of 2006 ------------------------- ( AGAINST ORDER NO.C3.45223/05/CT DATED 16.05.2006 of COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM). .................... APPELLANT/APPLICANT: ------------------------------------ M/S.POOJA MILK FOODS (P) LTD., 33/283/D, DR.AMBEDKAR ROAD, VENNALA, KOCHI 682 028, REPRESENTED BY ITS MANAGING DIRECTOR, MR.T.MOHAN JOSEPH VERGHESE. BY ADV. SRI. ANIL D.NAIR, SRI. A.M.SHAFFIQUE (SR.) SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT/RESPONDENT: ------------------------------------------ STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SHRI VINOD CHANDRAN THIS SALES TAX APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = = S.T.A. No.13 OF 2006 = = = = = = = = = = = == = = = = = = = = = = = = = Dated this the 30th day of September, 2008 J U D G M E N T ---------------------- H.L. Dattu, C.J. The legality or otherwise of the order passed by the Commissioner of Commercial Taxes, Thiruvananthapuram No.C3.45223/05/CT Dt.16.5.2006 is the subject matter of this Sales Tax Appeal. (2) The appellant before us is a company running a diary unit with manufacturing facilities. It has established its dairy unit in Cochin. The appellant company brings milk (raw) from outside the State, process, packs and sells it within the State. (3) The appellant company had filed an application under Section 59A of the Kerala General Sales Tax Act, 1963, hereinafter for the sake of brevity referred to as Act, 1963, inter alia requesting the Commissioner of Commercial Taxes to clarify whether appellant's activity is eligible and entitled for the benefits of tax exemption under Notification S.R.O. 201/2005 dated 16.2.2005. (4) The Commissioner of Commercial Taxes has clarified that the appellant's unit is not entitled to the benefit of exemption under S.T. A No.13 of 2006 -: 2 :- Notification S.R.O. 201/2005 dated 16.2.2005, mainly on the ground that the appellant's dairy unit procures milk from outside the State, process, packs and sells it within the State. The Commissioner was of the view that the exemption Notification is meant for those milk farmers within the State. (5) It is this clarification issued by the Commissioner of Commercial Taxes is the subject matter of this appeal. (6) In order to resolve the controversy in our opinion, the Notification issued by the State Government dated 22.3.2001 and the subsequent Notification issued on 16.2.2005 require to be noticed. They read as under: “G.O.(P)No.30/2001/TD Dated, Thiruvananthapuram, 22nd March,2001 SRO No.307/2001:- In exercise of the powers conferred by Section 10 of the Kerala General Sales Tax Act, 1963 (15 of 1963), the Government of Kerala, having considered it necessary in the public interest so to do, hereby make an exemption in respect of the tax payable under the said Act on the sale of pasteurised milk, homogenised milk, toned milk, standardised milk, skimmed milk, full cream milk and recombined or reconstituted milk sold by Co-operative Societies including Kerala Co-operative Milk Marketing Federation Limited. This notification shall be deemed to have been in force from 1st day of January, 1994 till 31st day of December, 1999. Tax, if any, already collected shall be paid over to Government and tax, if any, already paid shall not be S.T. A No.13 of 2006 -: 3 :- refunded. Explanatory Note (This does not form part of the notification, but is intended to indicate its general purport) Government have decided to grant tax exemption for the sale of pasteurised milk, homogenised milk, toned milk, standardised milk, skimmed milk, full cream milk and recombined or reconstituted milk sold by Co-operative Societies during the period from 1st January, 1994 to 31st December, 1999. This notification is intended to achieve the above object. (Kerala Gazette Extraordinary No.469 dated 24th March, 2001 Volume XLVI) G.O.(P)NO.23/2005/TD Dated Thiruvananthapuram, 16th February, 2005 S.R.O.No.201/2005:- In exercise of the powers conferred by Section 10 of the Kerala General Sales Tax Act, 1963 (15 of 1963), the Government of Kerala, having considered it necessary in public the interest so to do, hereby make an exemption in respect of the tax payable under the said Act on the sale of pasteurised milk, homogenised milk, the toned milk, standardised milk, skimmed milk, full cream milk and recombined or reconstituted milk sold by milk producers within the State. This Notification shall be deemed to have been force from the 1st day of January, 1994 till 31st December, 1999. Tax if any already collected shall be paid over to Government and tax if any already paid shall not be refunded. S.T. A No.13 of 2006 -: 4 :- Explanatory Note (This does not form part of the notification, but is intended to indicate its general purport) As per notification published as S.R.O. No.307/2001 dated 22nd March 2001,the exemption from sales tax on the sale of pasteurised milk, homogenised milk, toned milk, standardised milk, skimmed milk, full cream milk and recombined or reconstituted milk was limited to co-operative societies. Government have now decided to extend the benefit to milk producers within the State also. This Notification is intended to achieve the above object. (Kerala Gazette Extraordinary No.407 dated 23rd February 2005 Vol.L)” (7) In the earlier Notification there was exemption from payment of tax under the provisions of the KGST Act to the Co-operative Societies including Kerala Milk Marketing Federation Limited on the sale of pasteurised milk, homogenised milk, toned milk, standardised milk, skimmed milk, full cream milk and recombined or reconstituted milk. By a subsequent Notification this benefit is extended to all the milk producers within the State. (8) The question now for consideration and decision is whether the appellant's dairy unit is entitled to get the benefit of Notification S.R.O. No.201 of 2005 dated 16.2.2005. (9) The State Government has issued the aforesaid Notification under Section 10 of the KGST Act. The said Notification is S.T. A No.13 of 2006 -: 5 :- issued in the public interest. The purport of the Notification is to grant exemption on the sale of milk by the milk producers within the State. (10) The admitted facts are, that the appellant is a dairy unit. It procures milk from outside and after processing and packing, it is sold within the State. It is like any other Co-operative Society or any other milk producer. “Producer” means any person engaged in any activity connected with or relatable to any primary produce. The 'milk producer' is not just confined to those persons who produce the milk in the State. The Notification is also made applicable to the Co-operative Societies, milk federations, who collect the milk from the farmers and effects sale of such milk in the State. The activity of the appellant is in no way different from Co-operative Societies or milk federation. In the earlier Notification as we have already pointed out the State Government had extended the benefit of the Notification to all the Co-operative Societies including the Kerala Milk Marketing Federation Limited. The benefit of that Notification came to be extended to other milk producers in the State by a subsequent Notification dated 16.2.2005. (11) In our opinion, since the appellant also is a milk producer within the State though procures milk from outside is also eligible and entitled to the benefit of the Notification S.R.O. No.201 of 2005 dated 16.2.2005. In view of the above, the Commissioner of Commercial Taxes was S.T. A No.13 of 2006 -: 6 :- not justified in clarifying that the appellant's dairy is not entitled to the benefit of the Notification S.R.O. No.201/2005 dated 16.2.2005. Therefore, while setting aside the order passed by the Commissioner of Commercial Taxes, Thiruvananthapuram, we clarify that the appellant's unit is also entitled to the benefit under Notification S.R.O. No.201 of 2005 dated 16.2.2005. Ordered accordingly. H.L.DATTU, CHIEF JUSTICE. THOMAS P.JOSEPH, JUDGE. vsv/dk