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 4TH OCTOBER 2010 / 12TH ASWINA 1932 OT.Rev.No. 37 of 2010 -------------------------------- [TA.(VAT).NO.30/2009 IN C.O.NO.5/2009 OF THE KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM] .................... REVISION PETITIONER: ---------------------------------- DR.C.G.PRAKASH, CHETTIPARAMBIL AYUR PRODUCTS, ALATHUR, ANNAMANADA, THRISSUR. BY ADVS. SRI.K.S.BABU, SRI.N.SUDHA. RESPONDENT: ---------------------- STATE OF KERALA. BY SR. GOVT. PLEADER SRI. MOHAMMED RAFEEQ. THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. C.N.RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ O.T.Rev. No: 37 OF 2010 ----------------------------------------------------------- Dated this the 4th October, 2010. JUDGMENT Ramachandran Nair, J. The issues raised pertain to the addition to the turn over and with regard to rate of tax on three items. We have heard counsel appearing for the petitioner and the Govt. Pleader for the respondents. 2. So far as the challenge against the addition to the turnover sustained by the Tribunal is concerned, we do not find any substantial question of law arising because addition is based on suppression detected during inspection and lower authorities have granted quantum relief. We therefore reject the revision on this issue. 3. So far as the rate of tax on products are concerned, Govt. Pleader fairly conceded that the Commissioner of Commercial Taxes in exercise of powers under Section 94 of the KVAT Act clarified rate of tax on Ajamamsarayanam and Pookula lehyam at 4% treating both as Ayurvedic medicines. In view of the clarification issued the benefit of it would have been given to other dealers we feel the O.T.Rev.No: 37/2010 2 petitioner is also entitled to assessment at lower rate. Consequently this issue is allowed in favour of the petitioner by directing revision of assessment on the turnover of these two items at 4%. However, if excess tax is collected the Officer will forfeit the same under the provisions of the Act. 4. So far as rate of tax on Memortone is concerned even though counsel for the petitioner raised the same contentions as in the case of other two products, Govt. Pleader has produced petitioner's website wherein the claim is that Memortone tons up nervous system, improves physical fitness and sharpens mental agility. There is nothing to indicate that this is a medicine for prevention or cure of any specific disease. Consequently Tribunal rightly held that this is a food supplement assessable at higher rate of tax at 12.5%. The revision is allowed in part as indicated above. C.N.RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj O.T.Rev.No: 37/2010 3 O.T.Rev.No: 37/2010 4