IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 ST.Rev..No. 526 of 2004 ------------------------- TA.107/2002 of S.T.A.T.ADDL.BENCH,ERNAKULAM .................... PETITIONER/APPELLANT: ------------------------------------- K.M.JOSEPH, PROPRIETOR, M/S.KADAMBUKATTIL ENTERPRISES, RAYONPURAM, PERUMBAVOOR. BY ADV. SRI.C.K.THANU PILLAI RESPONDENT/RESPONDENT: ----------------------------------------- STATE OF KERALA. BY SR. GOVERNMENT PLEADER SRI. MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev. No. 526 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2008. ORDER H.L.DATTU, CJ, Petitioner is a dealer registered under the provisions of Kerala General Sales Tax Act ('KGST Act' for short) and is engaged in the business of sale of Refrigerator stands. In this revision case, we are concerned with the assessment year 1991-92. 2. The assessing authority, while completing the assessment for the aforesaid assessment year, had accepted the version of the assessee and had treated refrigerator stands as plastic goods, and accordingly, had levied tax at the rates applicable to plastic goods. The order so passed by the assessing authority was taken exception to by the revisional authority by invoking his powers under Section 35 of the KGST Act and had directed the assessing authority to treat the refrigerator stands as accessories of refrigerators. 3. After the disposal of the revision petition, the assessing authority has passed the re-assessment order and has treated the refrigerator stands as accessories of refrigerators and accordingly has taxed at 15% under Entry 157 of the First Schedule to the KGST Act. The assessee, being aggrieved by the said order had carried the matter before the first appellate authority, who in turn following the decision of this court in Marykutty Joseph v. State of Kerala ((1996) 102 STC 79) had rejected the first appeal filed by the assessee. 4. Being aggrieved by the orders so passed, the assessee had carried the matter in appeal before the Tribunal in T.A. No. 107 of 2002. The Tribunal had also rejected the assessee's appeal by its order dated 31.3.2003. S.T.Rev.526/2004. 2 Aggrieved by the said order, the assessee was before this court in Tax Revision Case No. 241 of 2003. This court, by its order dated 15th October, 2003 had allowed the assessee's revision petition and had remanded the matter to the Tribunal for a fresh disposal in accordance with law. 5. After such remand, the Tribunal, by its order dated 27th May, 2004 has directed the assessing authority to levy tax at the rate of 20% on the first sale of the refrigerator stand in view of Entry 118 of the First Schedule to the KGST Act, which has come into effect from 1.4.1992. The order passed by the Tribunal is as under: “Spare-parts and accessories of refrigerators, water coolers, air conditioning/plant & machines are included in Entry 118 of 1st schedule from 1.4.92 taxable at 20% on first sale. Therefore accessories of refrigerators, water coolers and air conditioning plant and machines are specifically in the first schedule in entry 118 which are taxable at 20%. Therefore the fridge stand, top, TV stand etc., will come under accessories from 1.4.92 taxable at 20% instead of general rate in view of the above judgment in Marykutty Joseph Vs. State of Kerala, we are of the view that the appeal filed by the appellant is devoid of merit and hence dismissed. “ 6. Aggrieved by the said order passed by the Tribunal, the assessee is before us in this Tax Revision Case. The assessee has framed the following questions of law for our consideration and decision: “(i) Whether on the facts and in the circumstances of the case, is the Tribunal justified in dismissing the appeal filed against the assessment for the year 1991-92 after squarely admitting that the rate of tax on accessory of refrigerator till 31.3.1992 was only the general rate namely, 5% multipoint, when the rate of tax adopted in the assessment for the year was 15%? (ii) Whether on the facts and in the circumstances of the case, is the Tribunal justified in upholding levy of tax on plastic stand sold by the S.T.Rev.526/2004. 3 petitioner as accessories of refrigerator when it has multi purpose and use as stand of may household appliances.? 7. Entry 157 of the First Schedule to the KGST Act, prior to 1.4.1992 reads as under: “Refrigerators, watercoolers and air conditioning plants and machines and component parts thereof.” 8. By a subsequent amendment, Entry 118 of the First Schedule to the KGST Act is introduced with effect from 1.4.1992. The said entry reads as under: “Spare parts and accessories of refrigerators, water coolers, air conditioning plants and machines.” 9. In Marykutty Joseph's Case, a Division Bench of this court has observed that refrigerator stand is nothing but accessories of refrigerator and taxable at multi point at 5%. Prior to 1.4.1992, Entry 157 of the First Schedule to the KGST Act did not speak of the accessories of refrigerator, water coolers or air conditioning plants. For the first time, by inserting Entry 118 to the First Schedule to the KGST Act with effect from 1.4.1992, the accessories of refrigerator has been introduced in the Schedule and the rate of tax is prescribed at 20% on first sale point. 10. The Tribunal, though takes note of the amendment that has been brought in by introducing Entry 118 to the First Schedule to the KGST Act, but still proceeds to hold that for the assessment year 1991-1992 the rate of tax payable is at 20% under Entry 118 of the First Schedule to the KGST Act on the sale of refrigerator stands, forgetting for a moment that the appeal that was filed before them was for the assessment year 1991-1992. 11. In that view of the matter, we cannot sustain the order passed by the Tribunal. Accordingly, we pass the following: S.T.Rev.526/2004. 4 Order (i) We set aside the order passed by the Tribunal and direct the assessing authority to issue a fresh demand notice keeping in view the observations made by us in the course of the order. (ii) If for any reason the assessee has collected tax more than what we have observed in the course of our order, the State Government is at liberty to forfeit the same. Consequently I.A. 3724 of 2004 is also dismissed. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb/dk.