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2018 (12) TMI 419

essee-respondent purchased it without reference to the rate of tax levied as per the Schedule to the Kerala Value Added Tax Act, 2003? - Held that:- Admittedly, there was an amendment made bringing 'paints' as a commodity taxable at 20% under a table appended to Section 6(1)(a) of the Kerala Value Added Tax Act, 2003. Obviously, various assessees dealing in similar products had purchased the same at 20% and had sold it also at 20%. Later, the Commissioner had come out with a circular bearing No.43/2006, wherein specific items of paints taxable at 20% were enumerated. Later, a further circular was issued bearing No.52/2006 wherein 'synthetic enamel paints' were excluded. The general purpose of the amendment and the circulars would indica .....

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assessee is a dealer in paints, white base, enamels, wood polish and thinner. During the year 2006, when the assessee purchased goods for resale, they paid 20% tax as evidenced by the invoices. The re-sale made by them was also at 20%. This is said to be on account of an amendment made by Finance Act 2006 including paints as a commodity taxable at 20%. The assessee submits that, admittedly, there was an anomaly insofar as the Department having come out with two circulars; one Circular No.43/2006 dated 27.11.2006 and the other Circular No.52/2006 dated 22.12.2006. The assessee having paid tax at the higher rate and also sold the products at the same rate and having not claimed any refund of the tax paid by it, they are entitled to input tax .....

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tax payment in excess of the rate available in the Schedule, then necessarily such collection to that extent would be forfeited by the State and the person who has paid the said tax would have to claim refund. 5. Despite our answering the questions of law in favour of the State, we do not think that in the facts arising in the above case there should be a different view taken from that of the Tribunal. There was definitely a doubt as to the rate of tax applicable to paints in general. Since it was included under a table appended to Section 6(1)(a) and levied tax at the higher rate of 20%, the dealers had purchased and collected tax also at the higher rate, since otherwise, they would not have had the opportunity to collect the tax at the sa .....

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