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 FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 S.T.Rev.No.334 of 2008 ----------------------------------------- T.A.NO.594/2006 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH-I, ERNAKULAM (ORDER DATED 18.07.2007) (ASSESSMENT YEAR 2002-2003) .................... REVISION PETITIONER/APPELLANT/ASSESSEE:- ------------------------------------------------------------------------- K.SRITHAR, FIVE STAR AGENCIES, 31/204, VYTTILA, KOCHI-19. BY ADV. SRI.N.MURALEEDHARAN NAIR & SRI.V.K.SHAMSUDHEEN. RESPONDENT/RESPONDENT/REVENUE:- -------------------------------------------------------------- STATE OF KERALA. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- S.T.Rev.No.334 of 2008 -------------------------------------------- Dated, this the 5th December, 2008 ORDER H.L.Dattu,C.J. The assessee is a dealer, registered under the provisions of the Kerala General Sales Tax Act, 1963 (“KGST Act” for short) and Central Sales Tax Act, 1956 (“CST Act” for short). He is also an agent of the principal, who has its registered office outside the State of Kerala. (2) In this revision case, the assessee calls in question the legality or otherwise of the orders passed by the Sales Tax Appellate Tribunal in T.A.No.594 of 2006, dated 18th July, 2007. By the impugned order, the Tribunal confirms the orders passed by the Additional Sales Tax Officer, 2nd Circle, Tripunithura dated 31.01.2005 and also the orders passed by the first appellate authority in S.T.A.No.3336 of 2005, dated 4.10.2006. (3) The relevant assessment year is 2002-2003. (4) The assessee's primary contention before the assessing authority was, that, the item sold by the assessee is a handmade soap, received by way of stock transfer from his principal, who is a Small Scale Industrial Unit and is engaged in the manufacture and sale of handmade S.T.Rev.334/2008. 2 - soap. The assessing authority has come to the conclusion relying upon the verifications made by the Check Post authorities at the time of interception of the vehicle, in which the goods were despatched from the principal to its agent in the State of Kerala. According to the assessing authority, what is sold by the assessee is “detergent cake”, manufactured by one “Five Star Detergents, Maniyakkaranpalayam, Coimbatore” by name “Sankar Detergent Cake”. The order passed by the assessing authority is also confirmed by the first appellate authority. Before the Tribunal, it was the contention of the assessee, that, in the “F” Form declaration issued by the assessee to the principal, it is clearly stated, that, what is received by the assessee is only a handmade soap and, therefore, the assessing authority was not justified in coming to the conclusion, that, what is received and sold by the assessee is not a handmade soap, but a detergent cake, manufactured by the assessee's principal. It is also stated before the Tribunal, that, for the previous assessment years, the Tribunal has granted relief to the assessee by holding, that, what is being received and sold by the assessee is nothing but a handmade soap. (5) The Tribunal has answered both the issues. Firstly, while answering the stand of the assessee, that, in the “F” Form declaration issued by the assessee, it is clearly stated, that, what is received by the assessee is only a handmade soap and not a detergent cake, the Tribunal is S.T.Rev.334/2008. 3 - of the opinion, that, these “F” Forms are issued by the assessee and, if, for any reason, the assessee, to suit his convenience, states in the “F” Form, that, it is only a handmade soap, it cannot be accepted in view of the physical verification of the commodity by the Tribunal and also the physical verification of the commodity by the Check Post authorities. (6) In our opinion, the Tribunal has physically verified the commodity in question and after such verification, on facts, comes to the conclusion, that, what is received by the assessee is a handmade soap manufactured by his principal, who is a dealer registered outside the State of Kerala. (7) The aforesaid finding is based on the physical verification. That only means, that, the finding is based on facts and, therefore, such a finding cannot be said to be a perverse finding. This Court, in exercise of its powers under Section 41 of the KGST Act, cannot take a different view. (8) The assessee's learned counsel would contend before us, that, for the previous assessment year, the Tribunal has taken the view that what is received and sold by the assessee is a handmade soap and, therefore, for the subsequent year the Tribunal ought not to have taken a different view. In support of that submission, the assessee's learned counsel has placed reliance on the views expressed by the apex Court. S.T.Rev.334/2008. 4 - (9) The principle of res judicata in tax matters would not arise, for the reason, that, every assessment year is a separate assessment year. No doubt, the Tribunal is expected to follow its earlier decision, unless a different view could be taken for a subsequent year. It is also true, that, in order to maintain the judicial disciple and decorum, the Tribunal is expected to follow its earlier decision. However, if the Tribunal can distinguish its earlier decision on facts and can come to a different conclusion, this Court cannot find fault with such a conclusion. (10) In the instant case, while referring to the earlier order passed by the Tribunal, it clearly says, that, the earlier order that was passed by the Tribunal was without verification of the commodity and also without taking into consideration the verification made by the Check Post authorities at the time of interception of the vehicle in question. In that view of the matter, merely because the Tribunal has not followed its earlier decision, it does not mean that for the subsequent assessment year the Tribunal cannot take a different view on verification of the commodity and, therefore, this Court cannot find fault with such orders. In that view of the matter, both the contentions canvassed by the learned counsel appearing for the assessee would not impress us. (11) Therefore, while confirming the orders passed by the Tribunal, the revision petition requires to be rejected and it is rejected and, S.T.Rev.334/2008. 5 - the questions of law framed by the assessee are answered against the assessee and in favour of the Revenue. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/- Judge