IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 ST.Rev.No.17 of 2005 ------------------------------------------ TA.No.364/2001 OF SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH-II, PALAKKAD (ORDER DATED 14-6-2002) .................... REVISION PETITIONER/RESPONDENT/REVENUE:- ---------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. RESPONDENT/APPELLANT/ASSESSEE:- -------------------------------------------------------- M/S.BHARAT RUBBER INDUSTRIES, THAIKKAD, THRISSUR. BY ADV. SRI.JOSE JOSEPH THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ S.T.Rev.No.17 of 2005 ------------------------------------------------------- Dated, this the 30th day of January, 2008 ORDER K.M.Joseph, J. State of Kerala is the petitioner in this revision petition filed under Section 41 of the Kerala General Sales Tax Act. The Sales Tax Officer completed the assessment in respect of the respondent for the year 1996-97. In passing the said assessment order, the assessing authority found that, the respondent assessee has sold manufactured jerry cans to dealers for export and produced Form 18A and claimed exemption. He found that the respondent had effected local purchase of the raw materials for manufacture of jerry cans by using Form 18 declaration. In the circumstances, the assessing authority proceeded to assess the differential rate of tax in tune with sub clause (ii) of clause (3) of Section 5 of the Kerala General Sales Tax Act (“K.G.S.T.Act” for short). The assessee went in appeal and the appellate authority confirmed the order of the assessing authority. However, in further appeal carried by the assessee, the Tribunal reversed the order of the appellate authority taking the view that the respondent assessee has not used the goods for any other purpose other than for the production of finished goods liable to tax and that it had not committed any irregularity to assess differential rate of tax under Clause (ii) of Sub section (3) of Section 5 of the Act. It is feeling aggrieved by the said order, the State of Kerala has preferred this revision. (2.) The petitioner has raised the following questions of law for our consideration and decision. S.T.Rev.No.17/2005 -2- (1). Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that there is no misuse of Form 18 Declaration and hence no assessment can be made in respect of difference of tax due. (2). Whether on the facts and in the circumstances of the case, the Tribunal is erred in holding that the goods purchased by filing Form 18 declaration used in the production of finished goods which was exported to outside the state will not amount to misuse of Form 18 declaration. (3). We heard Sri.Muhammed Rafiq, the learned Government Pleader appearing on behalf of the Revenue and Sri.Jose Joseph, learned counsel appearing for the respondent. (4). The learned Government Pleader pointed out that the order of the Tribunal is afflicted with the vice of non-consideration of the effect of Form 18 declaration as also proviso to sub-clause (i) of sub-section (3) of Section 5 of the K.G.S.T.Act as it stood during the relevant assessment year. In order to appreciate the question that has been raised for our consideration and decision, it is necessary to refer to the terms of the proviso to sub-clause (i) of sub-section (3) of Section 5 as it stood prior to its omission with effect from 1-4-2000. It is also necessary to refer to and extract Form 18 declaration also. Prior to the omission the proviso read as under: “Provided that this Clause shall not apply where the sale of such finished products is not liable to tax either under this Act or under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) or when such finished products are exported out of the territory of India.” S.T.Rev.No.17/2005 -3- THE KERALA GENERAL SALES TAX RULES, 1963 FORM NO.18 FORM OF DECLARATION (See Rule 28) DECLARATION MENTIONED IN PROVISO TO SECTION 5 (3) Original/Duplicate/Counterfoil : Name and address of dealer to whom issued : Registration No. of the dealer to whom issued : Officer issuing the form. : Date of issue : Seal of issuing authority (Seller) Name and address............................................................................... Certified that.......................the goods................................................... Purchased from you as per bill/cash memo stated below Supplied under your Chalan No........................... are for use by me/us as component part, raw materials/packing materials/containers covered by Section 5 (3) in the production of finished products inside the State for sale/for packing of such finished products inside the State for sale liable to tax under the Kerala General Sales Tax Act, 1963 or Central Sales Tax Act, 1956. 1. Description of the goods purchased. 2. Rate of tax as per schedule. 3. Concessional rate of tax under Section 5 (3). 4. Description of the goods manufactured/produced/packed. 5. Rate of tax applicable. 6. Bill No. Date Amount 7. Name and address of the purchasing dealer in full I/We declare that the above particulars are correct and complete to the best of my/our knowledge and belief: Date: Signature and Status of the person singing the declaration. S.T.Rev.No.17/2005 -4- (5). The further crucial provision to be referred to is sub clause (ii) of sub-section (3) of Section 5 of the Act. It reads as follows: “Where any dealer, after purchasing any goods by furnishing a declaration as mentioned in the proviso to Clause (i), fails to make use of the same for the purpose for which the declaration was furnished, he shall be liable to pay the tax that would have been payable by him, had the declaration not been furnished, less the tax, if any, paid by him and the same shall be levied and collected as if it is a tax due from him.” (6). It is not in dispute that the respondent assessee furnished Form 18 declaration. It resulted in the seller of the raw materials to the assessee enjoying the benefit of concessional rate available under Section 5 (3) of the Act. It is also not in dispute that the finished products manufactured by the respondent assessee making use of Form 18 declaraton came to be exported. This necessarily means that the finished goods which were manufactured by the respondent asessee was not made exigible to tax either under the K.G.S.T. Act or Central Sales Tax Act. It is in the background of this admitted facts that we would have to approach the question as to whether the Tribunal has erred in concluding that the Revenue is not entitled to invoke clause (ii) of sub-section (3) of Section 5 of the KGST Act to impose tax on the assessee. (7). The learned Government Pleader would contend that, S.T.Rev.No.17/2005 -5- Form 18 declaration has not been considered in its entirety by the Tribunal. He would submit that Form 18 declaration is in tune with the proviso which we have already adverted to. He would further submit that, the object of the provisions which we have extracted is that the concessional rate of tax is available only in case where raw materials which have been sold for production of finished products which finished products are made exigible to tax either under the K.G.S.T.Act or Central Sales Tax (“CST Act for short”). In a case where there is export of the finished goods, they are not exigible to tax. It is in such circumstances where the purchaser does not sell the goods either within the State or make an inter-state sale making it exigible either under the K.G.S.T.Act or CST Act that a demand for the differential rate is justified, he contends. (8). Sri.Jose Joseph, learned counsel appearing for the respondent, on the other hand, would contend that the finding of the Tribunal that the assessee has used the raw material for the purpose mentioned in the declaration, and in the absence of any finding against the same, the finding of the Tribunal is only to be justified. He would contend that Section 5 (3) (ii) of the KGST Act, as it stands, justifies the order of the Tribunal. (9). We are of the view that, the revision filed by the State is only to be allowed. It is to be noted that the Form 18 declaration which is admittedly in tune with the proviso contemplated that, the raw materials which are purchased by the dealer is made use of for the purpose of S.T.Rev.No.17/2005 -6- production of finished goods. But, it may not be correct to say that the purport of the declaration is only that the purchasing dealer makes use of the raw material for the production of finished goods or for packing of the finished goods alone. The purport of the proviso as also the declaration is not only that the purchasing dealer must make use of the raw material for production of finished goods or for packing of finished goods but it must further be sold either in the State or in the course of inter-state trade or commerce, so that the finished goods are subject to tax either under the State Act or Central Act. The provision is intended to promote manufacture of goods. It is to avoid the rise in the cost of production and consequently the sale price that the concept of concessional rate of tax is embodied in Section 5 (3). Keeping this principle in view, we take the view that, the reasoning of the Tribunal that the respondent assessee has used the raw materials for the purpose it is stated in the declaration cannot be sustained. We are of the firm view that, the respondent assessee in this case has not made use of the raw materials for the purpose for which he gave declaration in so far as he exported the goods after the production of the goods whereby the goods escaped from the liability to pay tax under the State Act and also under the Central Act. In this view of the matter the questions of law raised by the petitioner is answered in favour of the Revenue and against the assessee. The order of the Tribunal is set aside and we allow this revision petition. S.T.Rev.No.17/2005 -7- Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS