IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 OT.Rev.No. 28 of 2011() ----------------------- AGAINST ORDER DATED 31/01/2011 IN TA.437/2010 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM .................... REVISION PETITIONER/APPELLANT ------------------------------------------------- P.NATARAJAN, RAJAN CASHEW COMPANY, MARANADU, KOLLAM. BY ADV. SRI.N.D.PREMACHANDRAN RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA- REPRESENTED BY DEPUTY COMMISSIONER, SALES TAX (LAW), COMMERCIAL TAXES, ERNAKULAM. MR.MOHAMMED RAFIQ, GOVERNMENT PLEADER THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 27/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OT REV. NO.28/2011 APPENDIX REVISION PETITIONER'S EXHIBITS ANNEXURE-A : COPY OF ASSESSMENT ORDER DATED 15/03/2010. ANNEXURE-B : COPY OF APPELLATE ORDER DATED 17/07/2010. ANNEXURE-C : COPY OF ORDER DATED 31/01/2011 OF THE SALES TAX APPELLATE TRIBUNAL. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- O.T.Rev. No.28 of 2011 --------------------------------- Dated, this the 27th day of June, 2011 J U D G M E N T Ramachandran Nair, J. The question raised is whether the estimate of output of cashew at 20 KG / bag is correct or not. It is seen that all the authorities including the Tribunal confirmed the estimate because the petitioner did not maintain a proper stock register or manufacturing account to prove input-output ratio. Therefore the only course open to the Assessing Officer is estimation of production and sales turnover from out of the total quantity imported by the petitioner. The petitioner's case is that cashew imported was inferior quality and the petitioner got a price reduction of about Rs.1.82 crores. Learned Government Pleader's contention is that taking into account the petitioner's case the Officer has fixed lower out turn than the normal out turn obtained. However what we find is neither O.T.Rev.No.28/2011 -2- the petitioner nor the Assessing Officer considered the out turn obtained in similar cases. Since cashew is sourced almost by all processors from African countries, namely, Tanzania, Mozambic etc., petitioner's case is not a unique one and similar problems alleged would have been there for other importers as well. If output accounted by similar importers during the same period from the same countries is lower than 20 KG / bag fixed by the Officer, then certainly the petitioner should be given relief. We, therefore, allow this revision case by setting aside the assessment confirmed by the Tribunal with direction to the Assessing Officer to consider the input-output ratio during the same period pertaining to other cashew processors, who have imported cashew nuts from the same African countries. The petitioner can also obtain and furnish the details to the Officer for the Officer to verify the same. There will also be a direction to the Officer to consider whether the petitioner got refund by verifying bank account because bank account will O.T.Rev.No.28/2011 -3- show the payment received in foreign exchange towards the claim on account of inferior quality. Both the petitioner and the Assessing Officer can collect data from Cashew Corporation or from any channel agency, which imported cashew during that year from same countries, and the Assessing Officer can make assessment based on the same. This revision case is allowed as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg