9911796707
TMI Blog2000 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... essee") was assessed by the Assistant Commissioner (Gujarathi Accounts), Special Circle-II, Kozhikode, who levied tax at the rate of 10 per cent on assessed turnover of tarpaulin. Assessee took the stand that tarpaulin is nothing but cotton fabrics and, therefore, covered under item 7 (wrongly described as item 8) of the Third Schedule to the Act. This plea did not find acceptance by the assessing officer, who held that the commodity was covered by item 100-C of the First Schedule. Though assessing officer and the first appellate authority, i.e., Deputy Commissioner (Appeals), Kozhikode held that tarpaulin falls under item 100-C, Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode (in short, "the Tribunal") held otherwise, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1991 with effect from August 1, 1991. No change in any other item, rate, point of levy was made. This was the position till March 31, 1992, as amended by the Kerala Finance Act, 1992. New item 106 reads as "rain coat, tarpaulin and products of waterproof cloth, rexine and PVC cloth". Rate of tax has been increased to 10 per cent, with no change in the point of levy. According to the Revenue, tarpaulin falls under item 100-C or 152, as the case may be, taxable at 8 per cent at the first point of sale in the State from April 1, 1984 to March 31, 1992. It falls under item 106 with effect from April 1, 1992 taxable at 10 per cent at the point of first sale in the State. So far as periods prior to April 1, 1984 are concerned, it is to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 5(1)(ii) of the Act is clearly unacceptable. During the relevant point of time, relevant item in the Third Schedule (goods exempted from tax under section 9) was as follows: "7. Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises and Salt Act 1944." 6.. Revenue has strongly relied on the clarification issued by the State under section 59A of the Act. It has to be noted that scope of said provision was examined by this Court in Travancore Chemical & Manufacturing Company Ltd. v. State of Kerala [1991] 81 STC 313. It was, inter alia, held that provision empowering the State Government to decide questions as to rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade parties to the proceedings. Decision of the Government is final notwithstanding any other provision in the Act. It has a disturbing potency of having a binding effect even on the Tribunal or the High Court while functioning as a revisional court under section 41 of the Act. View of this Court in Travancore Chemical & Manufacturing Company Ltd's case [1991] 81 STC 313 was upheld by the apex Court in State of Kerala v. Travancore Chemicals and Manufacturing Co. [1999] 112 STC 191. It was, inter alia, observed that quasijudicial or judicial determination stands replaced by the power to take an administrative decision. Section does not contain any guidelines as to at what stage the power can be exercised. There is nothing in the section whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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