TMI Blog2015 (11) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... e Port authority, evidencing the fact of transportation of the goods to the archipelago. It would also follow, on a reasonable construction of the statutory provision, that in a situation where the dealer effecting supplies to the Lakshadweep Administration, is not required in terms of the contract between the parties to effect supplies of the goods in the archipelago, but rather has to effect supplies to the Lakshadweep Administration only in the mainland, then the requirement of production of a copy of the shipping bill duly attested by the Port authorities cannot be fulfilled by the supplying dealer, since he is not in any way involved with the transportation of the goods to the archipelago. Petitioners had produced the necessary declaration in Form No.42 duly signed and sealed by the buyer concerned and in that respect, there was substantial compliance with the requirement of Rule 12C for the purposes of claiming the concessional rate of tax envisaged under the 1st proviso to Section 6(1) of the KVAT Act. I am, therefore, of the view that the impugned orders of assessment in all these writ petitions pertaining to assessment year 2012-13 and Ext.P7 in WP(C) No.1331 of 2013 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall obtain a declaration in Form No.42, duly signed and sealed by the buyer along with the copy of the shipping Bill, or similar document duly attested by the Port Authorities and file a copy each of the same along with the return filed under Rule 22. The originals shall be retained by the dealer and shall be provided on demand by any authority under the Act. 3. The grievance of the petitioner in the writ petition is that in the case of supplies effected to the Lakshadweep Administration, the petitioner was facing a practical difficulty in producing a copy of the shipping bill, or similar document duly attested by the Port authorities, since the shipping activity in respect of the products supplied to the Lakshadweep Administrator was not carried out by the petitioner. It is relevant in this regard to notice the contents of the letters dated 03.11.2010 and 14.02.2011, written to the Commissioners of Commercial Taxes, Thiruvananthapuram/Ernakulam by the Office of the Executive Engineer, Lakshadweep Public Works Department/Department of Education, Administration of the Union Territory of Lakshadweep, wherein, the stand taken is that the stores and articles that are required fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fecting supplies to the Lakshadweep Administration, the role of the petitioner supplier ends with the supply of articles to the Store Keeper at Kochi or Beypore. From there, the transportation to the individual islands within the Lakshadweep archipelago is the responsibility of the Lakshadweep Administration and the petitioner and other similarly situated dealers do not have any role to play in the transportation of the goods to the individual islands, that constitute the archipelago. 5. While the petitioner had claimed the concessional rate of tax as envisaged under 1st proviso to Section 6 (1) of the KVAT Act, and filed returns claiming the said concessional rate of tax in respect of supplies effected to the Lakshadweep Administration and also furnished the necessary declaration in Form-42, duly signed and sealed by the Administrator of Lakshadweep Administration, the petitioner was served with a notice proposing an assessment under Section 25(1) of the KVAT Act by denying the concessional rates of tax in respect of supplies effected to the Lakshadweep Administration on the ground that the petitioner had not complied with the requirement in Rule 12C of the KVAT Rules, of furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the concessional rate of tax, the assessment orders, that are impugned in the writ petition cannot be found fault with and they have to be upheld. 8. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that as rightly pointed out by the learned Government Pleader, the provisions of the Act read with Rule 112C (1) of the KVAT Rules have to be seen as a complete code in respect of the grant of concessional rate of tax to dealers effecting supply of articles to the Lakshadweep Administration. The 1st proviso to Section 6(1) mandates that a dealer effecting supplies, inter alia, to the Lakshadweep Administration, can claim the benefit of concessional rate of tax in respect of the supplies so effected. This concessional rate of tax envisaged for supplies effected to the Lakshadweep Administrator, is subject only to such conditions as may be prescribed in the Rules. The rules therefore, have to be construed in a manner that is designed to effectuate the object of the statutory provision namely, the 1st proviso to Section 6(1). In other words, the conditions stipulated in Rule 12C (1) have to be interpreted in such a way that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la [2007 (2) SCC 725] and Novopan India Ltd., Hyderabad v. Collector of Central Excise and Customs, Hyderabad [1994 Supplementary (3) SCC 606]). On applying the said principles to the facts of the instant case, I am of the view, that inasmuch as it is discernible from Ext.P4 letters that the transportation of goods to the Lakshadweep archipelago was not within the scope of the obligations expected of the petitioners, in the sale agreement between the petitioners and the Lakshadweep Administration, the entitlement of the petitioners to the concessional rate of tax envisaged under the 1st proviso to Section 6(1) of the KVAT Act, cannot be denied solely for the reason that they had not produced a copy of the shipping bill attested by the Port authorities to evidence the fact of shipping of the goods to the Lakshadweep archipelago. It is trite that an assessee cannot be expected to be perform the impossible. It is not in dispute in the instant cases that the petitioners had produced the necessary declaration in Form No.42 duly signed and sealed by the buyer concerned and in that respect, there was substantial compliance with the requirement of Rule 12C for the purposes of claiming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of concessional rate of tax referred to above, while directing the 1st respondent assessing authority to redo the assessment of the petitioner under the KVAT Act, for the assessment year 2008-09, I also direct the assessing authority to consider Ext.P9 rectification application preferred by the petitioner, which is pending before him and pass a fresh order dealing with both the aspects, pursuant to the directions in this judgment. As regards, Ext.P7(a) order of assessment under the CST Act, which is also impugned in the said writ petition, I am of the view that the petitioner should be relegated to his alternate remedy of filing an appeal against Ext.P7 order before the appellate authority under the CST Act. Accordingly, if the petitioner files an appeal against Ext.P7(a) order, before the appellate authority, within a period of one month from the date of receipt of a copy of this judgment, then the appellate authority shall consider the same and pass appropriate orders thereon on merits, after hearing the petitioner. The stay of recovery proceedings pursuant to Ext.P7(a) order, that has been granted by this Court in the present writ petition, shall continue to be in for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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