9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (3) TMI 931 - HC - VAT and Sales TaxWhat is the compounded rate of tax applicable to primary crushers in terms of the similarly worded Explanations occurring at the foot of section 7(1)(b) of the Kerala General Sales Tax Act 1963 hereinafter the KGST Act and section 8(b) of the Kerala Value Added Tax Act 2003 for short the KVAT Act ? Held that - Writ petitions allowed quashing Circular No. 11/ 07 dated February 28 2007 issued by the Commissioner of Commercial Taxes and it is declared that the compounded rate of tax on primary crusher is 50 per cent of the respective rates mentioned in clauses (i) (ii) and (iii) respectively of section 7(1)(b) of the KGST Act and section 8(b) of the KVAT Act depending upon the size of the primary crusher in each case. It is also declared that the clarification issued by the Commissioner of Commercial Taxes as per order No. C3.44514/04/CT dated April 2 2005 is in terms of the declaration made herein. All impugned proceedings contrary to the declaration in this judgment are quashed. Any payments made by the dealers contrary to the declaration of law as contained in this judgment will be refunded in accordance with law.
Issues Involved:
1. Compounded rate of tax applicable to primary crushers under the Kerala General Sales Tax Act (KGST Act) and Kerala Value Added Tax Act (KVAT Act). 2. Legality of the Circular No. 11/2007 issued by the Commissioner of Commercial Taxes. 3. Authority of the Commissioner to issue clarifications under section 59A of the KGST Act and section 94 of the KVAT Act. 4. Interpretation of the Explanations at the foot of section 7(1)(b) of the KGST Act and section 8(b) of the KVAT Act. Detailed Analysis: 1. Compounded Rate of Tax Applicable to Primary Crushers: The core issue revolves around determining the compounded rate of tax for primary crushers as per the KGST Act and KVAT Act. The petitioners, who own granite metal crushing units, were initially assessed under the KGST Act and later under the KVAT Act from April 1, 2005. The Commissioner of Commercial Taxes issued a clarification on April 2, 2005, stating that the compounded tax rate for primary crushers is 50% of the rate mentioned in section 7(1)(b) of the KGST Act, depending on the size of the machinery. 2. Legality of the Circular No. 11/2007: The petitioners challenged Circular No. 11/2007 issued on February 28, 2007, which stated that the compounded tax for primary crushers would be 50% of the total compounded tax for secondary crushers in a crushing unit. The petitioners argued that this circular was contrary to the statutory provisions and exceeded the authority conferred by section 59A of the KGST Act and section 94 of the KVAT Act. 3. Authority of the Commissioner to Issue Clarifications: Section 59A of the KGST Act and section 94 of the KVAT Act empower the Commissioner to issue clarifications to resolve disputes regarding tax payable, the point and rate thereof. The court emphasized that the Commissioner's power to issue clarifications is limited to elucidating the application of the statutes and does not include the authority to contradict the provisions of the Acts and Rules. The court cited several precedents, including Jhunjhunwala v. State of U.P. and Paluru Ramkrishnaiah v. Union of India, to reinforce that administrative instructions cannot override statutory rules. 4. Interpretation of the Explanations: The Explanations at the foot of section 7(1)(b) of the KGST Act and section 8(b) of the KVAT Act were analyzed. Both Explanations state that the primary crusher shall be reckoned for the computation of compounded tax and that the rate applicable to primary crushers shall be 50% of the rates mentioned for other crushers, depending on their size. The court rejected the Department's argument that the rate should be 50% of the aggregate of the rates applicable to all other crushers, stating that the statutes do not provide for such an interpretation. The court clarified that the rate for a primary crusher is 50% of the rate applicable to a crushing machine of the same size category. Judgment: The court quashed Circular No. 11/2007, declaring it ultra vires the KGST Act and KVAT Act. It upheld the clarification issued on April 2, 2005, and declared that the compounded rate of tax for primary crushers is 50% of the respective rates mentioned in section 7(1)(b) of the KGST Act and section 8(b) of the KVAT Act, depending on the size of the primary crusher. All proceedings contrary to this declaration were quashed, and any payments made by the dealers contrary to this judgment were ordered to be refunded in accordance with the law.
|
