IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 OT.Appeal.No. 4 of 2010() ------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29030/2009 Dated 25/11/2009 .................... APPELLANT/PETITIONER ---------------------------------------- LION DATES IMPEX PVT LTD., BUILDING NO.66/877 B, AMBATTU HOUSE, CORREYA ROAD, PACHALAM, KOCHI-682012. REP. BY THE MANAGER. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER SMT.GISA SUSAN THOMAS RESPONDENT(S): --------------- 1. DEPUTY COMMISSIONER(APPEALS) DEPARTMENT OF COMMERCIAL TAXES, SALES TAX OFFICE, TRIVANDRUM. 2. COMMERCIAL TAX OFFICER(AUDIT ASSESSMENT) COMMERCIAL TAX DEPARTMENT, ERNAKULAM. 3. THE STATE OF KERALA, REPRESENTE BY THE SECRETARY TO THE GOVERNMENT, TRIVANDRUM. BY G.P. SRI. MOHAMMED RAFIQ THIS OTHER TAX APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. C .N. RAMACHANDRAN NAIR, & P.S. GOPINATHAN, JJ. -------------------------------------------- O.T. APPEAL No. 4 OF 2010 -------------------------------------------- Dated this the 14th day of June, 2010 JUDGMENT Ramachandran Nair, J. The challenge is against the clarification issued by the Commissioner under Section 94 of the KVAT Act, declaring processed oats as an item falling under item 49 of Third Schedule to the Act. Counsel for the appellant contended that oats is covered by item 12 of First Schedule to the Act which provides among other things oats under the head coarse grains. Government Pleader has produced Notes on Chapter 10 under the Customs Tariff Act which specifically states as follows: The Chapter does not cover grains which have been hulled or otherwise worked. However, rice, husked, milled, polished, glazed, parboiled or broken remains classified in heading 1006. We notice that though con as a coarse grain is also covered by exemption clause 12 of First Schedule, conflake is in entry 49(3) of Third Schedule to the Act. The Legislative intention is clear from the different treatment, the products are given from coarse grains. OTA 4/2010 2 Therefore grains in the coarse form only are covered by the exemption clause 12 of Third Schedule. We have considered the very same argument raised by counsel in this case in the decision in M/S. THOMSON PAPER PRODUCTS V. COMMISSIONER OF COMMERCIAL TAXES, (2008) 3 K.L.T. 254. We find that Commissioner has taken the view consistent with what we have taken in the above decision. Consequently following our judgment above referred, we uphold the order of the Commissioner and dismiss the OTA. Tax necessarily has to be demanded in accordance with Commissioner's clarification. Demand has to be modified in line with the Commissioner's order. If the appellant has collected more tax, the assessing officer will deal with such collection in accordance with statutory provisions. We make it clear that we have not dealt with incidence of tax with regard to processed oats sold under brand name because that is not an issue decided in the impugned order of the Commissioner. (C.N.RAMACHANDRAN NAIR) Judge. (P.S. GOPINATHAN) Judge. KK OTA 4/2010 3