Abraham vs Commissioner of Commercial Taxes

C.N. Ramachandran Nair, J.—The petitioner is a contractor-cum-supplier among other persons to Cochin Shipyard Ltd. The petitioner obtained a purchase order form the Cochin Shipyard Ltd. for purchase of various electronic components for use in their manufacture, or repair of ships. The petitioner claims the benefit of notification, SRO 1091/99, which under Clause 3 of its Schedule III provides for reduction of rate of tax in respect of supply of goods at the rate of 5 per cent. The benefit under the notification is for the Industrial units including public sector undertakings for use in the manufacture or processing of goods by them or on job work basis within the State. The reduction in rate of tax is 5%. There is no dispute with regard to rate of tax applicable on the sales which are certified by the purchasers in terms of Annexure I to the notification.

The grievance of the petitioner is that though the petitioner is not liable to pay additional sales tax u/s 5D of the KGST Act, the petitioner will be called upon to pay the same in view of the clarification Ext. P2 and therefore the petitioner has challenged the said clarification issued by the Commissioner of Commercial Taxes u/s 59A of the KGST Act in this Original Petition. According to the said clarification, the reduced rate under the above said notification does not apply to addl. sales tax which is a special levy. The petitioner has pointed out that another party has challenged the very same clarification and this Court remanded the matter for reconsideration by the Commissioner of Commercial Taxes. However, no orders are seen issued. In the circumstances, the petitioner is challenged the validity of the clarification. The petitioner has further submitted that the judgment based on which this Court has remanded the other case to the Commissioner of Commercial Taxes does not apply to the facts of the petitioner''s case and the petitioner does not want a remand in the matter. In the circumstances, I proceed to decide the issue on merits.

For the sake of clarity and completeness the relevant Section 5D is extracted below, which is only for 2001-02:

"5D. Levy of Additional Sales Tax:- The tax payable u/s 5 and Section 5A shall be increased by an additional sales tax at the rate of fifteen per cent of the tax payable under the said Sections:

Provided that no additional sales tax under this section shall be levied,-

(a) on the tax payable on High Speed Diesel Oil, Petrol and Liquified Petroleum Gas falling under sub-items (i), (v) and (viii) respectively of serial number 108 and Foreign Liquor falling under serial No. 60 of the First Schedule;

(b) on any goods falling under the Second Schedule in such a way that the tax leviable u/s 5 and Section 5A and that leviable under this section together exceed four per cent:

Provided further that the levy of additional tax payable under this section shall only be for the period upto 31.3.2002."

It is obvious from the above that it is an additional levy in respect of tax payable under various provisions of Sections 5 and 5A of the KGST Act. While Section 5 provides for payment of tax on sale or purchase of goods and on certain other transactions at the rates prescribed in the corresponding Schedules and at the points of levy provided therein, similar levy is provided u/s 5A on purchases under circumstances in which no tax is payable by the seller. In the notification SRO 1091/1999 which has replaced SRO 1728/1993, the Government has granted various reliefs, some in the form of total exemption and some in the form of reduction in rate of tax to various dealers and classes of goods under various circumstances and on satisfying certain conditions. The relevant portion of the SRO applicable to the facts of this case is extracted hereunder:

SRO No. 1091/99:- In exercise of the powers conferred by Section 10 of the Kerala and General Sales Tax Act, 1963 (Act 15 of 1963) and in supersession of all the earlier notifications (except the notification issued in G.O.(P)155/93/TD dated 3rd November 1993) issued u/s 10 of the Kerala General Sales Tax which are in force as on the 31st December, 1999. The Government of Kerala, having considered it necessary in the public interest so to do, hereby,-

I. make a reduction in the rate of tax payable under the said Act,-(1) .....

(3) on the turnover of sale to the persons or organisations mentioned in column (2) of Schedule III of goods specified in column (3) thereof to the rate mentioned in column (4) on the seller producing a certificate in duplicate in the form in the Annexure I obtained from the purchaser.

..........SCHEDULE III PERSONS OR ORGANISATIONS, THE RATE OF TAX ON THE SALE OF GOODS TO WHOM IS REDUCED UNDER SUB-CLAUSE (3) OF CLAUSE I

Sl. Description of Description of Reduced rate

No. person/organisation Goods of tax (%)

3 Industrial units including (i) machinery 3

public sector undertakings (ii) goods other then Petroleum 5

for use in the manufacture or products coming under entry

processing of goods by them 108 of the First

or on job work, basis within Schedule to the Act

the State. (iii) Furnance oil for use as Fuel 15

(iv) Goods mentioned in the 3

Table to this Notification

It is obvious from the above notification that the benefit conferred under it on supplies/ sales of goods to Industrial units, public sector undertakings is on the ''rate of tax'', which is also provided in the Schedule to the Notification. In other words, normal rate provided under the First Schedule or other Schedules of the KGST Act is substituted by the lower rate in the notification if the sale is entitled to the benefit of the notification, and nothing more. However this notification does not cover additional sales tax levied u/s 5D of the Act. The wording of Section 5D itself is that the "tax payable u/s 5 and Section 5A shall be increased by an additional sales tax at the rate of fifteen per cent of the tax payable under the said Sections". The notification SRO 1091/99 issued u/s 10 of the Act so far as the same applies to the petitioner reduces the rate of tax otherwise payable u/s 5 read with the relevant Schedule to the KGST Act. But the additional sales tax u/s 5D is not a rate of tax, but an independent levy at 15% on the total payable by the dealer under Sections 5 and 5A. All that Section 5D says is that the tax payable is increased by additional tax at the rate of 15%. In other words, it is only after determining the total tax under Sections 5 and 5A, Section 5D comes into play. This is the view taken by the Commissioner in the impugned clarification u/s 59A of the KGST Act. The petitioner has referred to a decision of the Supreme Court in Deputy Commissioner of Sales Tax Vs. Aysha Hosiery Factory (P) Ltd. and Others, . That was a case u/s 8(5) of the CST Act wherein the Supreme Court held that the rate of tax in respect of turnover not covered by declarations u/s 8(3) will be increased by additional tax payable under the Kerala Addl. Sales Tax Act. The decision referred to will not apply to the facts of the petitioner''s case because in that case the court was concerned about the meaning of the term "local rate of tax" u/s 8(2)(b) of the CST Act and in this case, the additional sales tax is on the tax payable under the local act and rate of tax has no significance. If the tax is payable u/s 5 or Section 5A the same will be increased by additional sales tax by fifteen per cent is the scope of the section. Therefore, I do not find any merit in the Original Petition. The petitioner is liable to pay additional sales tax and clarification made vide Ext. P2 is upheld. The Original Petition is dismissed.

When the case was taken up for hearing, I pointed out to counsel that there is an alternate remedy provided u/s 40 of the KGST Act by way of an appeal to the High Court, and therefore a petition under Article 226 of the Constitution of India is not maintainable. However, counsel pointed out that appeal u/s 40 is for the person who sought the clarification u/s 59A. I cannot agree with this because an appeal u/s 40(1) is by "any person objecting to an order affecting him passed u/s 59A". Of course the only technical problem is the limitation of 90 days provided for filing appeal from the date of receipt of the order u/s 59A which applies to a person who applied for and obtained the clarification u/s 59A. May be in the case of "other aggrieved parties" who were not applicants before the Commissioner u/s 59A, limitation may run from the date of knowledge or grievance or in any case the power of this Court to condone the delay under proviso to Section 40(1) will come to their rescue. Of course, there are all matters on which the Division Bench will pronounce when the situation arises in appeal. I make this observation only to make it clear that the decision on merits in this case should not persuade every aggrieved party to approach this Court under Article 226, instead of pursuing the remedy of appeal available u/s 40 of the KGST Act.