IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 ST.Rev..No. 288 of 2009() ------------------------- TA.8/2009 of S.T.A.T., ADDL.BENCH-II, ERNAKULAM .................... PETITIONER/APPELLANT: ----------------------------------------- M/S.KIMBERLY CLARK LEVER PVT.LTD., WILLINGDONL ISLAND, COCHIN-3. BY ADV. M/S .ANIL D. NAIR & SRI.NIVEDITA A. KAMATH RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY FINANCE SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI MOHAMMED RAFFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 07/01/2010, ALONG WITH STRV. NO.289/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ---------------------------------------- STRV. Nos.288 & 289 of 2009 ---------------------------------------- Dated, the 7th day January, 2010 JUDGMENT Ramachandran Nair, J. The connected S.T.Revision cases arise from orders of the Tribunal dismissing the petitioners' KGST & CST appeals for assessment year 2004-05. 2. We have heard the counsel appearing for the petitioner and the Government Pleader for the respondent. 3. The contention of the petitioner is that addition in KGST assessment of Rs.10 lakhs for non-production of certain delivery notes is arbitrary and untenable. So far as CST assessment is concerned, the contention is that stock transfer is denied exemption for the reason that transport documents are not produced. Government Pleader submitted that the petitioner-assessee failed to produce delivery notes in Form 26 issued by the Department and therefore, turnover for missing delivery note is estimated. So far as CST is concerned, his contention is that the Tribunal only followed the judgment of this Strv 288 & 289/09 -:2:- Court wherein this Court held that stock transfer can be granted exemption only on production of proof of transport of goods from Kerala to outside State. 4. In the assessment order as well as the orders in appeal, we find that none of the authorities have considered as to how many delivery notes are missing and the basis of estimation of turnover for the missing delivery notes. Further, if the petitioner is able to prove from F forms that missing delivery notes were used for interstate transfer, then there is no scope for addition under KGST as well as disallowance on stock transfer and assessment under CST because if both are done , the same will mean duplicity in turnover for the same defect. Since none of the authorities have considered this aspect of the matter, we allow the S.T. Revision cases and set aside the orders of the Tribunal and the first appellate authority and remand the matter to the assessing officer to verify F Forms, delivery notes, delivery note books issued to the petitioner and verify whether any delivery note is not accounted in the F forms and, if so, to sustain addition under Strv 288 & 289/09 -:3:- KGST based on estimation of turnover for missing delivery notes. The balance addition under KGST assessment can be only for stock transfer not proved. In other words once addition is made in the KGST assessment, there is no scope for disallowance of stock transfer and assessment under CST also. The Assessing Officer will verify the records and revise assessment after giving opportunity to the petitioner to produce documents. We also give opportunity to the petitioner to produce proof of transport of goods if they are able to prove interstate stock transfer. C.N. RAMACHANDRAN NAIR, JUDGE V.K.MOHANAN, JUDGE kvm/- Strv 288 & 289/09 -:4:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..