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 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 S.T.Rev.No.269 of 2005 ---------------------------------------- T.A.NO.18/2004 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,PALAKKAD - ORDER DATED 31.05.2004. (ASSESSMENT YEAR 2001-02) .................... REVISION PETITIONER/APPELLANT/REVENUE:- ----------------------------------------------------------------------- STATE OF KERALA, REP. BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. RESPONDENT/RESPONDENT/ASSESSEE:- --------------------------------------------------------------- BHAVANI GLUCOSE, PATTIMALA, AGALI, MANNARKKAD. ADV. SRI.JACOB SEBASTIAN THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. ------------------------------------------- S.T.Rev.No.269 of 2005 ------------------------------------------- Dated, this the 12th day of November, 2008 ORDER H.L.Dattu,C.J. The Revenue was before the Sales Tax Appellate Tribunal, being aggrieved by the orders passed by the first appellate authority in S.T.A.No.535 of 2003 dated 27.11.2003. (2) The first appellate authority, by its order dated 27.11.2003, had remanded the matter to the assessing authority to verify the purchase bills of the assessee and then to decide whether liquid glucose is manufactured out of Tapioca and then modify the assessment accordingly, for the assessment year 2001-02. (3) The Revenue was before the Tribunal in T.A.No.18 of 2004. The one and only question that was canvassed before the Tribunal was, whether the first appellate authority was justified in allowing the claim of the assessee, that, liquid glucose, that is manufactured by the assessee, is produced out of Tapioca. (4) The Tribunal, relying upon its earlier decision in T.A.Nos.191 to 194, disposed of on 19th August, 2000 and also relying upon the observations made by the apex Court in the case of Collector of Central Excise, Coimbatore v. Protein Products of India Limited [(1989) 74 STC 98], S.T.Rev.269 of 2005. - 2 - has rejected the Revenue's appeal. That is how the Revenue is before us in this revision petition. (5) The Revenue has framed the following questions of law for our consideration and decision. They are as under: “(i) Whether in the facts and circumstances of the case and the legal position, the Tribunal is right in holding that the “liquid glucose” is a product of tapioca taxable under entry 149 of the First Schedule to the KGST Act, 1963? (ii) Whether the item “liquid glucose” is taxable under the entries of 149 or 177 of the First Schedule to the Kerala General Sales Tax Act, 1963? (iii) Whether the Tribunal is right in holding that liquid glucose sold by the assessee is tapioca products in absence of proper evidences?” (6) The questions of law framed by the Revenue are no more debatable in view of the decision of this Court in the case of State of Kerala v. M/s.Parrys Confectionaries Ltd. (S.T.Rev.No.174 of 2005, decided on 27th May, 2008). In the aforesaid decision, this Court has observed as under: “14. Before the appellate authority, along with the memorandum of appeal, the assessee had produced a certificate issued by the manufacturer who had supplied liquid glucose to the assessee by accepting the Form 18 issued by the assessee. In that certificate the manufacturer had clearly stated that the liquid glucose supplied/distributed to the assessee by accepting Form 18 declaration is manufactured out of tapioca only. It was not the case of the Revenue before the first appellate authority that the S.T.Rev.269 of 2005. - 3 - certificate that was issued by the manufacturer is either a false certificate or that the certificate was issued only to assist the assessee. Since the manufacturer himself states that the liquid glucose supplied to the petitioner is manufactured out of tapioca, in our opinion, in the absence of any contra evidence, the first appellate authority should have accepted that certificate and should have granted whatever reliefs that the assessee was entitled to. That has not been done in the instant case. 15. In our view, in view of the certificate issued by the manufacturer who had supplied the liquid glucose to the assessee, we have no hesitation to hold that the product so sold to the assessee is a product manufactured out of tapioca and therefore, it requires to be classified only under Entry 129 of the First Schedule to the KGST Act and if that is so, the rate of tax would be at 3% and there was no occasion for the assessing authority to demand differential rate of tax on the branch transfers effected by the assessee at the rate of 7%”. (7) In view of the law declared by this Court, in our view, the questions of law raised by the Revenue requires to be answered against the Revenue and in favour of the assessee. We do so. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/-