IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 16206 of 2004(D) -------------------------------------- PETITIONER(S): ------------------------ THE THIRUMBADI RUBBER COMPANY LIMITED, TIRUMBADI ESTATE, MUKKAM P.O.-673 602, KOZHIKODE, COMPANY REGISTERED UNDER INDIAN COMPANIES ACT: REPRESENTED BY COMMERCIAL MANAGER. BY ADVS.MR.PREMJIT NAGENDRAN MR.P.RAGHUNATH RESPONDENT(S): -------------------------- 1. ASST. COMMISSIONER (ASSMT.)I, SPECIAL CIRCLE II, CALICUT. 2. COMMISSIONER OF COMMERCIAL TAAXES, TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY (TAXES), TRIVANDRUM. BY SPL. GOVT. PLEADER MR.VINOD CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16206/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RETURN (REVISED) IN FORM NO.9 UNDER THE GST ACT. P2:- COPY OF THE RETURN IN FORM NO.II UNDER THE CST ACT. P3:- COPY OF THE ASSESSMENT NOTICE UNDER THE KGST ACT. P4:- COPY OF THE OBJECTIONS DT. 24.3.04. P5:- COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1999.00(GST) P6:- COPY OF THE PRE-ASSESSMENT NOTICE UNDER THE CST ACT DT. 1.3.04. P7:- COPY OF THE REPLY FILED TO EXT.P6 NOTICE. YEAR 1999.00(CST). P9:- COPY OF THE DECISION IN (1991) 80STC 138(SC). TRUE COPY P.A. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 16206 OF 2004 ----------------------------------- Dated this the 17th day of June, 2009 JUDGMENT The challenge involved in the present Writ Petition is against Ext.P5 and P8 assessment orders passed by the first respondent under the KGST Act as well as CST Act for the assessment year 1999-2000. 2. The petitioner is marketing centrifuged latex, which is mainly sold on inter state sale basis. The commodity is actually made from own latex or purchased from other producers after paying the requisite purchase tax. By virtue of the prescription under SRO 1731/93, as amended by SRO 215/97, the rubber was brought in as eligible commodity for exemption of tax under the CST Act subject to the condition that tax is levied under the KGST Act, on the purchases of the said rubber. By virtue of the above, the petitioner was regularly filing the monthly returns and claiming exemptions from the CST Act. While so SRO 695/03 was introduced on 25.07.2003 with effect from 01.04.1988 to 09.10.2001, providing exemption for the 'field latex', however holding that if any tax has been paid, no refund would be effected under any circumstance. 2. The grievance of the petitioner is that the first respondent WPC NO.16206/2004 2 passed Ext.P5 order under KGST Act, observing that the petitioner was very much entitled to have exemption by virtue of the stipulation under SRO 695/2003, however making it clear that the petitioner will not be entitled to have the benefit of refund. Coming to the case under the CST Act, the respondent passed Ext.P8 order holding that, in view of the exemption available to the petitioner, there was no payment of any purchase tax and in the said circumstance, the petitioner was very much liable to pay the tax under the CST Act. 3. By virtue of SRO 215/97 dated 01.04.1997 amending SRO 1731/93 (CST), no inter-state sale was taxable, if tax was levied under the KGST Act. As per Circular No.16/98, if tax was paid on latex under the Act, no tax would be payable for the latex from 01.04.1997. Since the petitioner was stated as given exemption for the period in question, with regard to the liability to pay purchase tax, there is no question of any sufferance of tax. The course and attitude pursued by the respondents can't but be deprecated. This is for the reason that, the petitioner has already suffered payment of tax by satisfying the liability cast upon him. By virtue of the stipulations in the concerned SRO, he was not in a position to have the amount refunded. After denying the benefit of refund, there is no point seeking to realise further amount in disguise, observing that the liability under the CST still subsisted. WPC NO.16206/2004 3 4. In the said circumstance, the liability to pay the CST on the strength of Ext.P8 order will stand set aside and it is made clear that the petitioner having already satisfied the liability towards the purchase tax and unable to get refund, will be entitled to have the benefit of exemption with respect to CST. Accordingly, the first respondent is hereby directed to pass fresh orders taking note of the observations as made above; of course after giving an opportunity of hearing to the petitioner, as expeditiously as possible; at any rate, within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc