IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 ST.Rev..No. 266 of 2007 ------------------------------- TA.358/2006 of S.T.A.T.ADDL.BENCH,ERNAKULAM ........................................ PETITIONER ------------------ K-LINK HEALTH CARE (INDIA)PVT. LTD., 35/1854, A7, IIND FLOOR, SURABHI BUILDINGS, SOUTH JANATHA ROAD, PALARIVATTOM, COCHIN-682025 - HAVING PRESENT ADDRESS AS THEJUS AUDITIORIUM, PALARIVATTOM,COCHIN 682025, REP. BY ITS A.G.AHMED. BY ADV. SRI.P.M.POULOSE RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. V.K.SHAMSUDEEN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ S.T.Rev. NO: 266 OF 2007 ----------------------------------------------------------------------------------- Dated this the 16th February, 2009. JUDGMENT RAMACHANDRAN NAIR, J. The issue raised pertains to rate of tax on various products sold by the petitioner. We have heard counsel appearing for the petitioner and the Govt. pleader and have gone through the orders of the first appellate authority which is set aside and remanded by the Tribunal. 2. In the first place we do not find any justification for the Tribunal to set aside the first appellate authority's order without reversing the findings entered by him. In fact from among the products discussed by the first appellate authority, he found those with medicinal value are assessable as herbal products. However, if products are not medicine the production of which will require a drug licence for manufacture it was for the first appellate authority to have considered whether they were food supplements which are not taxable as medicine. In fact statute provides for levy of tax on all kind of food products whether canned tinned or packed. Some items involved are assessed as cosmetic products. However, the S.T.Rev. No: 266/2007 2 first appellate authority found that they improve health and so much he found that these items are also medicinal products. Even though the first appellate authority's order may not be tenable as such, we do not find any justification for the Tribunal to remand the matter to the same authority. In fact this is a fit case where Tribunal should have called for assessment records and verified the statements and admissions made by the petitioner before the assessing officer consider product samples, licence obtained by the petitioner etc. and decided the matter on classification of each and every item distributed by the petitioner. We therefore set aside the order of the Tribunal and restore the matter back to the Tribunal with a direction to the Tribunal to decide the matter afresh after considering the ingredients used and application of the product and classify the same with reference to the entries in the Act. The Tribunal is directed to pass fresh orders within a period of three months from the date of receipt of a copy of the judgment from either side. 3. Even though counsel for the petitioner submitted for another order the first appellate authority's order on similar lines is S.T.Rev. No: 266/2007 3 accepted by the assessing officer, we do not think that there is any res judicata . C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: