IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 ST.Rev..No. 259 of 2007 ------------------------- TA.382/2005 of S.T.A.T., ADDL.BENCH-II, ERNAKULAM .................... REVISION PETITIONER/APPELLANT: --------------------------------------- M/S EASTERN AQUA MINERALS, SREEMOOLANAGARAM, ALUVA, ERNAKULAM DISTRICT, REPRESENTED BY K.AMANU, PARTNER. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT/RESPONDENT: ------------------------------- STATE OF KERALA. BY GOVERNMENT PLEADER, SRI.TEKCHAND THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 16/01/2009, ALONG WITH STRV NO. 260 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- S.T. Rev. Nos. 259 & 260 OF 2007 -------------------------------------------- Dated this the 16th day of January, 2009 JUDGMENT Ramachandran Nair,J. Tax Revision Cases filed by the assessee pertain to assessment years 2001-02 and 2002-03. We have heard counsel appearing for the petitioner and Government Pleader appearing for the respondent. 2. The two questions raised are common for both the years. The first one pertains to petitioner's claim for exemption on sale of packaged drinking water. Even though petitioner applied for sales tax exemption on packaged drinking water, no exemption certificate was granted because this Court had decided that packaged drinking water was not a manufactured product entitled to any exemption. However, pursuant to the judgment, Government granted exemption retrospectively to packaged drinking water vide notification SRO 731 of 2004 dated 17.7.2004. Even though Government Pleader submitted that the benefit of notification is available only to cases decided by this Court, we do not think exemption under this notification should be 2 confined to such dealers because in the first place, notification does not make any distinction and secondly petitioner is at par with other dealers in as much as petitioner would have got exemption had the judgment not been there. Further, Government Pleader submitted that retrospective exemption granted later was withdrawn by the Government which was cancelled by this Court and the matter is pending before the Supreme Court in SLP. If the Supreme Court allows the case then petitioner would not be entitled to the benefit of SRO 731/2004, which was withdrawn by notification cancelled by this Court. However, as on today, the judgment of the Division Bench of this Court stands. Therefore we allow the petitioner's claim for exemption on packaged drinking water, but on condition that if the subsequent notification is upheld by Supreme Court in the appeal, then exemption granted herein will stand cancelled and respondent can recover tax. 3. So far as withdrawal of exemption on Soda on account of involvement in suppressed sales or purchases under notification SRO 295/98 is concerned, we do not think we should grant the benefit to the petitioner because validity of the notification was upheld by this Court. 3 Even though counsel for the petitioner sought for a facility to pay compounding fee and twice the amount of tax to continue to enjoy the sales tax exemption, we do not think it can be granted at the revisional stage. We therefore reject this claim. 4. The one issue raised only for the assessment year 2002-03 is petitioner's claim for concessional rate of tax on the product sold, namely, Soda, under notification SRO 1091/99. We do not find that this issue is decided by the Tribunal and so much so, the question does not arise from the order of the Tribunal. However, since petitioner raised this issue before the Tribunal, we direct the Tribunal to reconsider the appeal on this limited issue and decide the matter afresh for the year 2002-03 after hearing the petitioner and respondent. Tax Revisions are disposed of as above. (C.N.RAMACHANDRAN NAIR) Judge. (C.K. ABDUL REHIM) Judge. kk 4