TMI Blog2010 (8) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... J. The judgment of the court was delivered by C.N. RAMACHANDRAN NAIR J. Question raised in the revision is whether the Tribunal was justified in holding that the turnover on interState sale of high speed diesel and bitumen not covered by C forms attracts rate of tax including turnover tax payable under section 5(2C) of the Kerala General Sales Tax Act, 1963 (hereinafter called the Act ) and the surcharge payable under the Surcharge on Taxes Act. We have heard Sri Jose Joseph, advocate appearing for the petitioner and Sri. Mohammed Rafiq, Government Pleader appearing for the respondent. The petitioner is a public sector oil company engaged in local sale as well as inter-State sale of petroleum products. During the year 1998-99, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CST Act is extracted hereunder: 8. Rates of tax on sales in the course of inter-State trade or commerce. (1) . . . (2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within sub-section (1), (a) in the case of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of such goods inside the appropriate State; (b) in the case of goods other than declared goods, shall be calculated at the rate of ten per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; and (c) in the case of goods, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiction introduced under section 8(2)(b) of the CST Act, all these taxes will go to form the rate of tax payable under section 8(2)(b) of the CST Act. In other words, according to him, rate of tax on the inter-State sales turnover of goods not covered by C form will attract the rate of tax which is the cumulative tax payable under the various charging sections under the sales tax law in the State. According to him, even though surcharge is a tax payable under separate statute, it is still sales tax on purchase or sale of goods and in view of the decision of the Supreme Court abovereferred declaring that the legislation has it s source in entry 54 of List II of the Seventh Schedule to the Constitution, all such taxes will go to form the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of entry 54 of List II of the Seventh Schedule to the Constitution and the State has legislative competence. In fact, it is also held in K.M. Mohamed Abdul Khader Firm v. State of Tamil Nadu reported in [1985] 58 STC 12 (SC) that varying rates payable by dealers depending on their turnover is also not discriminatory. The decision of the Madras High Court in Engine Valves case [1993] 90 STC 84 (Mad) abovereferred is on additional sales tax payable on inter-State sales not covered by C form which is a levy similar to the surcharge payable under the Kerala Act. So far no decision of the Supreme Court is brought to our notice reversing the judgment of the Madras High Court. Therefore, following the decision of the Madras High Court in Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner submitted that turnover tax covered by section 5(2C) is an independent levy and it applies only to oil companies defined in the Explanation under serial number 108 of the First Schedule to the KGST Act, which are only public sector oil companies. According to him, this being a special levy does not constitute rate of tax within the meaning of section 8(2)(b) of the CST Act. Section 5(2C) of the Act as it stood at the relevant time is extracted fhereunder for easy reference: 5. Levy of tax on sale or purchase of goods. . . . (2C)(i) Notwithstanding anything contained in this Act or the Rules made thereunder every dealer shall pay turnover tax on the turnover of goods as specified hereunder, namely, (a) by an oil company de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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