9911796707
TMI Blog2014 (3) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellants herein. 2. Short facts are as follows: the appellants are engaged in the business of dealing in areca nuts as a commission agent. The appellants purchase areca nuts from the local growers and thereafter, dispatch the same to the dealers located outside the State of Kerala. The appellants are entitled for a commission on such sales. 3. The commodity in question, viz. areca nut falls under Entry 7 of the First Schedule to the Kerala General Sales Tax, 1963 ('the Act' for short). So far as local purchase of areca nut is concerned, it is liable to tax at the last point of purchase by the dealer liable to tax under Section 5(1) of the Act in the State. Whereas it is taxable at the point of first sale in the State by the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing considered it necessary in the public interest so to do, hereby make the following amendment to Notification issued in G.O.(P) No.180/99/TD dated 31st December, 1999 and published as S.R.O. No.1091/99 in Kerala Gazette Extraordinary dated 31st December 1999, namely :- AMENDMENT In the said notification in Schedule 1 after serial number 9 and the entries against it in colums No.(2) and (3) and (4), the following serial numbers and entries shall be respectively inserted namely :- 10 Newsprint 8 2 11 Arecanut 8 4 12 Cardamom 8 4 13 Pepper 8 4 This notification shall be deemed to have come into force on the 1st day of January, 2000. Tax, if any, already collected at the higher rate shall be paid over to Government and tax, if any alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing authority, the appellant-assessee had filed an Original Petition before the learned Single Judge of the High Court. The learned Single Judge has observed that the purport of the notification is clear and covers two situations, i.e., (a) tax collected at a higher rate by the dealers from buyers should not be recovered, if it is not paid to the Revenue and (b) tax paid to the Revenue whether after collection or not ought not be refunded and concluded that the appellant-assessee is not entitled to refund of tax already paid and therefore, dismissed the case of the appellant-assessee. 8. Aggrieved by the aforesaid, the assessee had approached the Division Bench of the High Court which also concurred with the finding and conclusion reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded" as contained in the notification? 14. We have already noticed the notification so issued by the State Government with retrospective effect from 01.01.2000. The lis herein relates to the latter part of the notification which has two prongs contemplating two different situations in respect of tax payable on erstwhile higher rate of tax. First, that the tax collected at a higher rate shall be paid over to the State Government and second, that if the tax is already paid by the dealer at the higher rate, it shall not be refunded back to the dealer. By implication, the first category would include the tax collected by the dealer from the buyers and retained without remittance to the State Government. Whereas, the second category would refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2000. Having paid the higher rate of tax to the State Government, in our considered opinion, in view of the language employed in the notification, the assessee is not entitled for refund of the aforesaid amount. We say so for the reason that the rate of tax at the relevant point of time was 8%. Admittedly, the appellant had paid that amount. By subsequent amendment, though the rate of tax was reduced to 4%, the assessee cannot take advantage of the same and gain undue monetary advantage not due to him. 17. In light of the aforesaid, we are of the considered view that the assessing authority was justified in passing the order of rectification rectifying his earlier order wherein he had ordered for refund/adjustment of the excess tax paid f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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