IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 ST.Rev..No. 211 of 2006() ------------------------- TA.589/2004 of S.T.A.TRIBUNAL,ADDL.BENCH,PALAKKAD .................... REVISION PETITIONER/RESPONDENT/REVENUE: ----------------------------------------------------------- STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW),ERNAKULAM. BY G.P. SRI.V.K.SHAMSUDEEN RESPONDENT(S): APPELLANT/ASSESSEE: ---------------------------------- M. HARI, MELEPURATH HOUSE, CHERAMANGAD, TRICHUR. ADV. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... S.T. Rev. No.211 of 2006 .................................................................... Dated this the 4th day of February, 2009. JUDGMENT Ramachandran Nair, J. Revision is filed by the State challenging the order in appeal issued by the Sales Tax Appellate Tribunal. We have heard Government Pleader and counsel appearing for the respondent. 2. We find force in the contention of the Government Pleader that the Tribunal's order is arbitrary and untenable because Tribunal has neither considered the issue nor decided anything properly. We are afraid that the Tribunal did not even understand what was the issue raised before it. The respondent, a dealer in arrack, paid tax at compounded rate under Section 7(14) of the KGST Act. Even though no rebate was claimed in the assessment, respondent claimed rebate of tax paid on purchase in first appeal. The appellate authority partly allowed the claim, but without referring to any documents. On further appeal, Tribunal without verifying facts allowed the claim and remanded the case for reconsideration. The finding of the Tribunal is 2 not sustainable because they have not considered the case with reference to facts. In the first place, we do not know how the assessee can make a claim in the appeal for the first time because no claim is seen made in the assessment and assessee appears to have paid tax without contest. If records were produced and claim was made before the first appellate authority, he should have only referred the matter to the Assessing Officer. The case of the respondent is that purchase of rectified spirit entitles them for rebate of tax because according to them, arrack was not available in the market. Government Pleader on the other hand contended that arrack and rectified spirit are commercially different and there is no provision in the KGST Act to give rebate of tax paid on rectified spirit. We feel all these matters should first be raised before the Assessing Officer to be considered by him with reference to documents. We, therefore, confirm the order of the Tribunal so far as the remand is concerned, but by vacating the findings of the Tribunal and with direction to the Assessing Officer to consider the assessee's claim with reference to documents to be 3 produced. It would be open to the Assessing Officer to consider all matters pertaining to the claim. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms