IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 ST.Rev..No. 432 of 2006 ------------------------------- TA.195/2004 of S.T.A.T.ADDL.BENCH,ERNAKULAM .................... REVISION PETITIONER/RESPONDENT/REVENUE: ------------------------------------------------------------------ STATE OF KERALA REP.BY JOINT COMMISSIONER (LAW) IN-CHARGE COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER (SR0 MUHAMMED RAFIQ. RESPONDENTS: APPELLANT/ASSESSEE: ----------------------------------------------------- JACOB T.ABRAHAM, FIVE STAR AQUAMINERALS, KOLENCHERRY. BY ADV.SRI.ANIL D NAIR. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 23/06/2008, ALONG WITH ST.REVISIONS 441 & 452/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L. DATTU, C.J. & A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev.Nos. 432, 441 & 452 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2008 Order H.L. Dattu, C. J: These revision petitions pertain to the assessment years 1998-99 and 1999-2000. The revision petitioner has presented these revision petitions being aggrieved by the orders passed by the Sales Tax Appellate Tribunal in T.A.Nos.195/2004, 196/2004 and 197/2004 dated 31/10/2005. In these revision petitions the one and the only question that requires to be considered and decided by this Court is the rate of tax applicable to the sales turnover of the “packaged drinking water”. 2. According to the assessing authority what is sold by the petitioner is mineral water and therefore exigible to tax under Entry 87/124A of the First Schedule to the Kerala General Sales Tax Act (KGST Act for short) and taxable at the rate of 20%. However it was the case of the assessee before the assessing authority, that, what is sold by them is “water simple” in a packaged form and not mineral water. Rejecting the stand of the assesee, the assessing authority had completed the assessment for the assessment years in question by levying tax at the rate of 20%, solely on the ground that what is sold by the petitioner/assessee is mineral water. This was done by the assessing authority in proceedings initiated under Section 19 of the KGST Act In the appeal filed , the appellate authority has come to the conclusion that what is sold by the assessee is purely water in a S.T.Rs.432,441 &452/2006. 2 packaged form and therefore is of the view that the sale of the packaged water requires to be taxed under the residuary clause and the rate of tax applicable is only 8%/10%. 3. The Tribunal which is the last fact finding authority has come to the conclusion that what is sold by the assessee is water simpliciter in a packaged form and not mineral water. In paragraph 9 of the order the Tribunal has stated as under: “9. From the above, it is clear that eventhough the respondents had classified this product as 'mineral water' and later as packaged drinking water, it was not so. As it is found that the item is not 'mineral water' it cannot be taxed under Entry 87 of the KGST Act. The item can then be classified only as drinking water which is packaged. 'There is no entry in the KGST Act taxing packaged drinking water'. Hence it would come only under the residuary Entry. The contention of the State is that since the item had been declared by the respondent as 'mineral water' it should be treated as 'mineral water'. It is this contention that was negatived by the High Court.” 4. The Revenue being aggrieved by the findings of the Tribunal is before us in this Tax Revision Petitions. The Revenue has raised the following questions of law for our consideration and decision. They are as under: S.T.Rs.432,441 &452/2006. 3 “A. Whether the lower appellate authorities are justified in classifying the commodity - packaged drinking water (mineral water) in the matter of levy of tax? B. Is not on a construction of the relevant entries and applying the commercial/common parlance theory - packaged drinking water (mineral water) liable to be taxed under Entry 87/124A of the First Schedule to the KGST Act? C. Whether the lower appellate authorities are justified in directing assessment on the sales turnover of packaged drinking water (mineral water) at the rate of 8% as an item falling under the residuary entry, overlooking a more specific entry in the first schedule?” 5. Sri. Sri.Muhammed Rafiq, learned counsel appearing for the Revenue would submit that what is sold by the assessee is mineral water and therefore the assessing authority was justified in levying tax under Entry 87/124A of the First Schedule to KGST Act. 6. The Tribunal, is the last fact finding authority. The Tribunal after analysing the commodity sold by the assessee, has come to the conclusion, that, what is sold by the assessee is pure “water simple” in a packaged form and not mineral water. If that is so, since the packaged water does not find a place in any one of the Entries in the First Schedule to the KGST Act, it is required to be taxed only under the residuary clause and the rate of tax applicable is 8%/10%. S.T.Rs.432,441 &452/2006. 4 7. Since the issue that is decided by the Tribunal is purely of facts, this Court in exercise of its revisional jurisdiction is not permitted to upset the finding of fact arrived at by the Tribunal. In that view of the matter the revision petitions filed by the Revenue require to be rejected and they are rejected. Ordered accordingly. H.L. DATTU Chief Justice A.K. BASHEER Judge an/dk.