IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 S.T.Rev.No.438 of 2006 ----------------------------------------- T.A.NO.377 OF 2004 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH-II, ERNAKULAM (ORDER DATED 28.09.2005) (ASSESSMENT YEAR 2000-2001) .................... PETITIONER/APPELLANT:- -------------------------------------- M/S. PIOMA INDUSTRIES, MARKET ROAD, ALUVA, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, V.K.ABDUL REHMAN. BY ADV. SRI.C.K.THANU PILLAI RESPONDENT/RESPONDENT:- -------------------------------------------- THE STATE OF KERALA BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 03/09/2008, ALONG WITH S.T.REV.NO.439 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. ------------------------------------------------------ S.T.Rev.Nos.438 of 2006 & 439 of 2006 ----------------------------------------------------- Dated, this the 3rd day of September, 2008 ORDER H.L.Dattu,C.J. Since the facts and the legal issues are common in these two revision petitions, they are clubbed, heard and disposed of by this common order. (2) Whether 'Rasna' is an item which would fall under Entry 97 of the First Schedule to the Kerala General Sales Tax Act, 1963 (“Act” for short) or does it fall under Entry 141 of the First Schedule to the Act, was the subject matter before the Tribunal. The Tribunal, relying on the decision of this Court in the assessee's own case for the assessment years 1997-1998 and 1999-2000, had held against the assessee and in favour of the Revenue. According to the Tribunal, Rasna would fall under Entry 97 of the First Schedule to the Act and, therefore, liable to be taxed at 25%. (3) The assessee, being aggrieved by the earlier orders passed by this Court for the assessment years 1997-1998 and 1999-2000, had carried the matter by way of Special Leave Petition before the apex Court. The apex Court, after granting leave, has disposed of Civil Appeal S.T.Revs.438 & 439 of 2006 - 2 - No.4639 of 2008. The apex Court, in its order dated 25.07.2008, has stated as under: “It was also highlighting the fact that in 1999-2000 the Entry 87 as it stood in the year 1997-98 was split into two parts, i.e. Entries 87 and 124A. The explanation to the Entries 87 and 124A has also relevance. Undisputedly, Entries 87 and 97 relate to non-alcoholic drinks. It appears that the stand taken by the appellants about the article being “beverage” has not been specifically considered by the Assessing Authority, the First appellate Authority, the Tribunal and the High Court. Whether a particular article can be called as a “beverage” has to be factually decided. That analysis has not been done. Similarly, the effect of the introduction of the Entries 124A and 141 with the Assessment year 1999-2000 has not been considered. Therefore, the effect of the change from 1.1.2000 has also not been considered and has not been analysed. .........”. (4) Further, the apex Court has remanded the matter to the Tribunal for fresh consideration of the matter. (5) Since the Tribunal had mainly relied upon the decision of this Court in the assessee's own case for the assessment years 1997-1998 and 1999-2000, and those matters have now been remitted by the apex Court to the Tribunal for fresh consideration and decision, in our opinion, the same treatment requires to be given to these revision petitions also. S.T.Revs.438 & 439 of 2006 - 3 - (6) Accordingly, we pass the following: Order (i) The revision petitions are allowed. (ii) The impugned orders are set aside. (iii) The matter is remitted back to the Tribunal to consider the lis between the parties, as observed by the apex Court in the case of M/s.Pioma Industries v. State of Kerala [Civil Appeal No.4639 of 2008, disposed of on 25th July, 2008]. (iv) In view of the orders passed in the revision petitions, all pending interlocutory applications are closed. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/-