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TMI Blog2022 (8) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... e/Department is the contesting respondent. The parties are common in the writ petitions as well as O T Revisions. The issue arising in the batch of cases, both in fact and law, is the same. The differentiating circumstance is the assessment years during which the issues have arisen. The cases, hence, are disposed of by this common order. 2.1 The batch cases, for convenience, is classified as W.P.(C) No.40663/2018 and W.P.(C) No.16505/2022 as one group wherein the assessment order is challenged, or notice issued under Rule 6(5) of Central Sales Tax Kerala Rules 1957 is challenged. O.T. Revisions, the other category, are directed against the common order dated 01.02.2019 in TA (VAT) Nos.109/17 and connected cases. The details of the year of assessment and order against which the tax appeal is filed in this Court, both in the Writ Petitions and O T Revisions, are stated thus: Assessment year Order of the Dy. Commissioner Modified Assessment order of the Asst. Commissioner Order of the Tribunal W.P.(C) 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 KVATA 3767/16 dtd 26.05.2017 32080788022/2013-14 dtd 29.12.2018 (Ext.15) 32080788022/2014-15 dtd 01.01.2019 (Ext.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017 dtd 01.02.2019 57/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.110/2017 dtd 01.02.2019 61/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.111/2017 dtd 01.02.2019 79/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.117/2017 dtd 01.02.2019 103/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.116/2017 dtd 01.02.2019 104/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment was completed without conducting proper enquiry under law. Therefore, the Assessing Authority is directed to conduct appropriate enquiry and re-do the assessment afresh based on the findings of the enquiry conducted by the Assessing Authority. For the above purpose, the assessment order is Set aside for fresh disposal. Order accordingly." 4.1 The petitioner filed W.P.(C) No.8879/2018 praying for a direction to the Assistant Commissioner (Assessment) Special Circle to complete the assessment of the petitioner for the Assessment year 2013-14 by keeping in perspective Ext.P1 order dated 26.05.2017. On 15.03.2018, the writ petition was disposed of, and the operative portion reads thus: "3. Having regard to the facts and circumstances, I deem it appropriate to dispose of the writ petition directing the respondent to complete the assessment as directed in Ext.P1 order, within two months from the date of receipt of a copy of the judgment. Ordered accordingly." The Assistant Commissioner (Assessment), Special Circle, Thrissur, vide letter dated 10.01.2018 sought expert opinion from the Executive Engineer (PWD) Electronics Division and the opinion dated 14.02.2018 reads th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee in detail. In this reply the assessee stated the chronological details of the incident taken place regarding the assessment procedures and it ends with a cautionary in view that the clear possibility of malice if the assessing authority moves with the assessment procedure. I have considered this reply before finalising the assessment. These points were already considered in detail in the first reply filed by the assessee. The commodities in the schedules are allotted with code Numbers which are developed by the International Customs Organization as Harmmonised System of Nomenclature (HSN) and adopted by the Customs Tariff Act 1975. Verification of the assessment records, revealed that the assessee imported machines under three HSN codes namely 9022.90.90, 9022.19.00 and 9027.90.90 (as per bill of entry) and misclassified the same under HSN code as 9030.33.90 and paid tax @ 5% as an IT product. The three HSN codes namely HSN 9022.90.90, 9022.19.00 and 9027.90.90 which do not find a place in any of the schedules of KVAT Act 2003. As such the rate of tax would be 14.5% under entry 103 of the list of RNR goods. Here the assessee deliberately and meticulously misclass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department, having felt the need, obtained the opinion from the Executive Engineer Electronics Division Thrissur. The opinion is categorical to classify the commodity as 'Spectrum Analyser'. 7.2 Secondly, the Assistant Commissioner (Special Circle) cannot be said to have denied an opportunity to the dealer/ petitioner while making assessment orders in Exts.P15 and P16. But, the inadequacy in either consideration or procedural fairness would certainly arise from the opportunity availed by the dealer/petitioner and consideration of grounds/materials brought on record while making the orders in Exts.P15 and P16. The classification in the case on hand ought to have been undertaken firstly from the product details, the purpose of the product, commercial utility, HSN codes etc by referring to which commodity was imported, and Annexure 1 of the KVAT Act which deals with rules on interpretation. The findings for classifying the commodity as 'spectrometer' is on a converse basis, namely that since Spectrum analyser is not one of the commodities described in the schedule of the KVAT Act, the commodity shall be treated as Spectrometer falling under Entry 103. 7.3 In matters involving clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as follows: "32. The only other appeal which remains for our consideration is TA VAT 799/17 which is an appeal field by the assessee relating to the CST assessment for the year 2014-15. In this appeal, the following two contentions have been raised before us: "2. The interference in the figures computed and filed before the assessing authority by way of statutory audit report is very much limited and at any cost it should not disturbed the accounting principles. Here in this case, the assessing authority has wrongly interfered with the figures of trading result under the pretext of best judgment of estimation. 3.Credit notes produced to the extent of Rs.1,37,147/- is not considered is improper and not reconciling with the best judgment assessment, when tallied and judged with the audited statement." 33. As in the cases of the earlier two years, we find on a perusal of the assessment order that the above two contentions now raised before us have not been raised before the assessing authority. A perusal of the assessment order will show that the proposal in the pre assessment notice was to allow concessional rate of tax on the strength of C Form covering a turnove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve conclusion is that whether the classification issue pending before the Assistant Commissioner is present or not on the date when the common order was made by the Tribunal. The review of the order of remand in the batch of cases is not available since the issue of classification was pending before the Assistant Commissioner, and even now because of our views in W.P.(C) No.40663/2018. We are of the view that the remand is justified and hence confirmed. O T Revisions fail. 11. We have seen the consideration on the classification, adjudication etc leading to independent assessment orders in the cases of two dealers but same commodity. The commodity involved in both cases is one and the same. Therefore, this Court directs the Assistant Commissioner to enquire into the issues now remitted to him, by setting aside Exts.P15 and P16 dated 29.12.2018 and 01.01.2019 and also the returns filed in the OT Revisions, on the same day to maintain consistency in procedure and opportunity. The dealers may be afforded an opportunity to place material/ evidence as may be advised before the Assistant Commissioner (Special Circle). The dealers since are independent and separate, though enquiry is sc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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