IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 RP.No. 1172 of 2008 --------------------- AGAINST THE JUDGEMENT/ORDER IN STRV.294/2005 Dated 24/06/2008 TA.414/2004 of S.T.A.T.ADDL.BENCH,ERNAKULAM .................... PETITIONER / REVIEW PETITIONER: --------------------------------------- M/S. OSCAR (INFO) SERVICES, PERUMBAVOOR, ERNAKULAM DISTRICT. REPRESENTED BY ITS AUTHORISED SIGNATORY, SHRI.ASOK RUDRAN. BY ADV. SRI.K.J.ABRAHAM RESPONDENT/ RESPONDENT: ------------------------------- STATE OF KERALA SPL. GOVERNMENT PLEADER (TAXES) MR.MOHAMMED RAFIQ THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ========================================= R.P.No.1172 of 2008 =============================== Dated this the 3rd day of April, 2009. O R D E R Balakrishnan Nair, J. This is a review petition filed under sub-section 7(a) of Section 41 of the Kerala Government Sales Tax Act, 1963. The said sub-section reads as follows: “7(a). The High Court may, on the application of any party to a revision under this section review, any order passed by it on the basis of the discovery of new and important facts which after the exercise of due diligence were not within the knowledge of the applicant or could not be produced by him when the order was made”. 2. Justifying the invocation of the revisional remedy, the review petitioner has pleaded in paragraph 5 of the petition, the new and important facts which after due exercise of diligence were not within the knowledge of the applicant. Paragraph 5 reads as follows: “ 5. New and important facts which after the exercise of due diligence were not within the knowledge of the R.P.No.1172 of 2008 2 applicant or could be produced by him when the order was made (State facts briefly without a narrative): The question involved in the tax revision case was the rate of tax applicable to the goods mainly PCO monitor sold by the petitioner, which are used in public telephone booths. For the period 2001-2002 petitioner filed return conceding rate of tax @ 4% on the sales turnover of PCO monitor and thereafter assessment of the petitioner was completed U/s 17(4) of the KGST Act accepting the return filed but levied the tax for the product PCO monitor @ 8%, treating it as electronic goods falling under Entry 55 of the first schedule to the KGST Act. During this period petitioner collected and remitted tax @ 4% treating PCO monitor as a type of computers falling under Entry 56 of the first schedule to the KGST Act. Aggrieved by the Annexure I assessment order petitioner filed statutory appeal before the Appellate Asst. Commissioner, Commercial Taxes, Ernakulam. The first Appellate Authority decided the case in favour of the petitioner based on a decision of the Sales Tax Appellate Tribunal, Ernakulam in T.A.No.159/2001. Objecting the order passed by the first Appellate Authority the revenue filed second appeal before the Tribunal. The Tribunal found that its earlier decision in T.A.No.159/2001 was misunderstood by the first Appellate Authority while passing Annexure II order. R.P.No.1172 of 2008 3 The question which arose for consideration in T.A.No.159/2001 was as to whether PCO monitor will fall under “components and accessories of computers and subsystem” mentioned in schedule VI A, 3.2 of the SRO 870/99. The Tribunal in that case did not find that PCO monitor is a type of computer, but only held that the item is included under component and accessories of computers and subsystems thereof and concessional rate is allowable under SRO 870/99. The Tribunal further found that as per the certificate produced by assessee from the Asst. Professor, Department of Electronics Engineering, Government Engineering College, Thrissur, PCO monitor is a type of computer controlled machine used in STD booths for monitoring and billing of telephone calls and the said certificate does not certify that the PCO monitor is a computer. Therefore the Tribunal held that PCO monitor is not a computer. The Tribunal further held that rate of tax applicable to PCO monitor is 8% under Entry 55 of the first schedule to the KGST Act. While deciding so the Tribunal also relied on a clarification issued by the Commissioner of Commercial Taxes in which it was clarified that PCO monitor was an electronic instrument and rate of tax applicable is 8%”. Going by the above quoted paragraph, we feel that the pleading therein do not satisfy the requirements of sub-section 7 R.P.No.1172 of 2008 4 (a) of Section 41 of the Act which we have quoted above. Therefore, we feel that the review petition is not maintainable and accordingly, it is dismissed. However, we make it clear that the dismissal of the review petition will not affect any other remedy available to the review petitioner to redress its grievance under the statute. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. bkn/-