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 MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 S.T.Rev..No. 271 of 2006 --------------------------------- ORDER DATED 21.3.2006 IN TA.38/2005 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH-I, ERNAKULAM .................... PETITIONER/APPELLANT/ASSESSEE ---------------------------------------------------- M/S.ASIATIC TRADES, SAMSKARA JUNCTION, PALARIVATTOM. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.SUNIL SHANKER RESPONDENT/RESPONDENT/REVENUE --------------------------------------------------------- STATE OF KERALA REPRESENTED BY DEPUTY COMMISSIONER (LAW), COMIERCIAL TAXES, ERNAKULAM. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 09/06/2008, ALONG WITH STRV NO.274 OF 2006 & STRV NO.310 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------ S.T.Rev.Nos.271, 274 & 310 of 2006 ------------------------------------------ Dated, this the 9th day of June, 2008 ORDER H.L.Dattu, C.J. These revision petitions arise out of a common order passed by the Kerala Sales Tax Appellate Tribunal in T.A.Nos.38 of 2005, 39 of 2005 and 40 of 2005 dated 21st March, 2006. By the impugned order, the Tribunal has stated that the assessee who is a dealer registered under the provisions of the Kerala General Sales Tax Act, 1963 ('the Act' for short) is exigible for payment of tax under Section 5(2) of the Act since the assessee purchases Palmolin oil and sells them under a brand name 'Asiatic Palm Gold'. The conclusion reached by the Tribunal at the time of passing of the order is in accordance with Section 5(2) of the Act. 2. Aggrieved by the said orders passed by the Tribunal, the assessee has filed these tax revision cases before us. 3. The assessee has raised the following questions of law for our consideration and decision. They are as under: “A. Whether the lower authorities were justified in disallowing the claim of exemption in respect of the entire turnover on the 2nd sales of the unbranded palmolein made by the assessee, especially when the appellate authority had found that the assessee is not a brand name holder and that the assessee is not selling palmolein under any brand name called “Annapoorna” (a registered brand name of Hindusthan Lever or “Asiatic Palm Gold”? B. Whether the lower appellate authorities were justified in holding that the appellant is liable on the sales turnover of S.T.Rev.No.271 of 2006, etc. 2 palmolein purchased by it and sold under the brand name in filled packets, especially when the assessee had produced ample proof that the sales effected by the assessee is only unbranded palmolein? C. Were not the lower appellate authorities in error in holding turnover relating to the sales of the unbranded palmolein effected by the assessee under section 5(2) of the KGST Act in as much as such a provision can have application only in respect of goods with a registered trade name? D. Were the lower appellate authorities in error in not exempting the purchase turnover of packing materials from exigibility to tax in as much as the lower appellate authorities have themselves found that a substantial portion of the sales effected by the assessee is only bulk sales without any brand name?” 4. At the time of hearing of these revision petitions for admission Sri.K.I.Mayankutty Mather, learned counsel appearing for the assessee, brings to our notice a notification issued by the State Government in G.O.(P) NO.119/2007/TD dated 10.5.2007 and submits that in view of the notification issued by the State Government which is given effect from 1.4.1998 to 31.3.2004, the petitioner is eligible for exemption from payment of sales tax under Section 5(2) of the Act. 5. The said notification on which reliance is placed by the learned counsel appearing for the assessee was not before the Tribunal at the time of disposal of the appeals by the Tribunal. That only means the notification has been issued subsequently, but give effect to from an anterior date. In our opinion, the said notification requires to be brought to the notice of the Tribunal S.T.Rev.No.271 of 2006, etc. 3 by the assessee by filing an appropriate review petition. 6. In that view of the matter, for the present, we need not have to interfere with the orders passed by the Tribunal. However, we reserve liberty to the petitioner to file appropriate review petition before the Tribunal by bringing to the notice of the Tribunal the notification issued by the State Government dated 10.5.2007 wherein there is an exemption in respect of tax payable under Section 5(2) of the Act by the dealers on the turnover of sale of edible oil sold under their brand name after purchases made by them either from the manufacturers in the State of Kerala who enjoys sales tax exemption under notification SRO 1729/93 or importers or other dealers in the State of Kerala, and tax have been paid on such goods at the first point of sale under the Act. If and when such review petition is filed, we request the Tribunal to consider the same and pass appropriate orders in accordance with law and in accordance with the notification issued by the State Government. 7. In view of the order passed in the revision petitions, the relief sought for in I.A.Nos.2468, 2471 and 2678 of 2008 need not be considered by us. Therefore, the said applications are rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns