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 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 19624 of 2007(J) -------------------------- PETITIONER(S): --------------- M/S. BHARATH SANCHAR NIGAM LIMITED, OFFICE OF THE CGM, KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF ACCOUNTS OFFICER (CA), SRI.S.MADHAVAN NAIR. BY ADV. SMT.S.K.DEVI RESPONDENT(S): --------------- 1. THE ASST.COMMISSIONER (AUDIT ASSMT.), DEPARTMENT OF COMMERCIAL TAXES,THIRUVANANTHAPURAM. 2. THE SALES TAX APPELLATE TRIBUNAL, DEPARTMENT OF COMMERCIAL TAXES,THIRUVANANTHAPURAM. 3. THE INSPECTING ASST.COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES,THIRUVANANTHAPURM. BY G.P. SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, ALONG WITH WPC NO. 27445 OF 2005 & CONN. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 19624/2007) PETITIONER'S EXHIBITS: P1: TRUE COPY OF ORDER NO.320101667575/05-06/D.C(AA)T/C T DT.14.11.2006 OF R1. P2: .DO. /06-07/DC(AA)T/C T .DO. P3: TRUE COPY OF COMMON ORDER IN KVATA 116 TO 120/2006 DT.16.4.2007. P4: TRUE COPY OF APPEAL FOR 2005-06 DT.30.5.2007 FILED BEFORE R2. P5: .DO. FOR APRIL, 2006 .DO. P6: .DO. MAY, 2006 .DO. P7: .DO. JUNE, 2006 .DO. P8: .DO. JULY, 2006 .DO. P9: TRUE COPY OF STAY PETITION FOR 2005-06 DT.30.5.2007 FILED BEFORE R2. P10: .DO. FOR APRIL 2006 DT.30.5.2007 .DO. P11: .DO. MAY 2006 .DO. P12: .DO. JUNE 2006 .DO. P13: .DO. JULY 2006 .DO. P14: TRUE COPY OF RR NOTICE DT.15.2.2007 ISSUED BY R3. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR,J. -------------------------------------------- W.P.C. NOs. 19624,14889 23809 & 27708 OF 2007 & 29731, 31080, 27391, 29202, 29760,29418 & 27445 OF 2005 --------------------------------------------- Dated this the 18th day of September, 2007 REFERENCE ORDER In all these cases, petitioners who are mobile phone companies are challenging Entry 117 introduced to Third Schedule to the Kerala Value Added Tax Act 2003 by Taxation Law Amendment 2005. The Entry so introduced provides for levy of value added tax on "SIM CARDS including Recharge Vouchers". 2. The question whether "SIM CARD" constitutes "goods" for the purpose of levy of sales tax was earlier decided by this Court. However on appeal, the Supreme Court in BSNL V. UNION OF INDIA, (2006) 145 STC 91 remanded the matter to the assessing officers by holding that High Court ought not to have "finally determined the issue". Even though decision was rendered by the Supreme Court after introduction of the amendment to the statute impugned in these WPCs, no one appears to have brought to the notice 2 of the Supreme Court, the amendment to the Kerala Act, and consequently the Supreme Court also did not consider the amendment. In view of the direction by Supreme Court, this Court cannot enter into any finding even on the validity of the amendment to statute pertaining to "SIM CARD " because factual finding as to whether "SIM CARD" constitutes "goods" has to be entered by the assessing officers, which obviously means that the said decision should be subject matter of scrutiny by the appellate authorities, including Tribunal and probably High Court can decide only after orders are issued by the last fact finding authority under the statute. Therefore it is premature for this Court to decide this issue. 3. Petitioners have contended that Recharge Vouchers are nothing but advance payment for availing telephone service. By purchasing recharge coupons under various schemes, purchaser gets no "goods" but only "talk time", for availing mobile service for a given time. The request of the petitioners is that this aspect should be bifurcated and the constitutional validity of the impugned Entry in the statute should be considered, even if decision on "SIM CARD" is left 3 to be decided by statutory authorities. Having regard to the importance of the issue and since statutory provision is under challenge, I feel decision by a Division Bench of this Court is desirable , more so to achieve finality of judgment, as far as this Court is concerned. In the circumstances, I refer all these WPCs. for decision by a Division Bench. Since extension of stay is involved, Registry will place this matter before the Hon'ble Chief Justice for immediate posting of the cases for consideration by the Division Bench. (C.N.RAMACHANDRAN NAIR) Judge 4