IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 ST.Rev..No. 109 of 2007() ---------------------------------- TA.258/2005 of S.T.A.TRIBUNAL,ADDL.BENCH,PALAKKAD .................... PETITIONER/RESPONDENT/RESPONDENT/REVENUE: ----------------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY JOINT COMMISSIONER(LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER MR.V.K. SHAMSUDEEN RESPONDENT/APPELLANT/APPELLANT/ASSESSEE: --------------------------------------------------------------------------- BAIJU MOHAN, SHARON PRODUCTS, CHEMBUCHIRA (VIA), KODAKARA, THRISSUR DISTRICT, PIN-680 684. BY THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 12/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ S.T.Rev NO:109 OF 2007 ----------------------------------------------------------------------------------- Dated this the 12th March, 2009. JUDGMENT RAMACHANDRAN NAIR, J. Revision is filed by the State against the order of the Tribunal which held that respondent is not liable to pay tax on the items sold under brand name. However, on going through the order of the Tribunal and that of the first appellate authority we notice that the Tribunal had no jurisdiction to entertain appeal filed under Section 39(1) of the KGST Act against the order of the first appellate authority declining to entertain the appeal as the same was not filed in the prescribed form under the Rules. In fact the appeal shall lie before the Tribunal only against first appellate order on merits issued under Section 39(3) of the Act. The exemption to this is only an appeal covered by the first proviso to Section 34(1) of the Act which is a matter involving only question of law decided by decision of High Court or Supreme Court. In this case the first appeal was found to be defective and hence rejected by the first appellate authority. Therefore, the order rejecting an appeal as defective by the first appellate authority is not appealable under S.T.Rev.No: 109/2007 2 Section 39(1) of the KGST Act to the Tribunal. We therefore allow the revision by vacating the order of the Tribunal. Since the revision is allowed on this ground we do not go into the merits of the case. However findings of the Tribunal are vacated for the respondent to challenge the original assessment before the first appellate authority after curing the defect. In fact an opportunity is given to the respondent for curing the defect and for moving the appeal on merits before the first appellate authority within a reasonable time that is at least within one month from receipt of this judgment. We direct the assessing officer to serve a copy of this judgment to the respondent for information. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: