Allowed

State of Kerala v. Sri.Thomas George

Kerala HC11 Mar 2008ST.Rev./76/2005

Case brief

AI extract

What is this about?

This revenue revision petition challenged the Sales Tax Appellate Tribunal's order deleting tax on empty bottles sold by a liquor dealer. The High Court of Kerala allowed the revision and set aside the Tribunal's order, relying on a prior Division Bench decision holding that levying tax on empty bottles is valid.

What did the court decide?

The Tribunal's orders deleting the levy of tax on empty bottles were set aside.

State of Kerala Vs Sri.Thomas George — Kerala HC (2008) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929

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ST.Rev.No.76 of 2005

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---------------------------------------TA.No.283/1999 OF SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH THIRUVANANTHAAPURAM (ORDER DATED 22-11-2000) ....................

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REVISION PETITIONER /RESPONDENT/REVENUE:-

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STATE OF KERALA, REP.BY THE DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM.

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BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ.

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RESPONDENT / APPELLANT/ASSESSEE:-

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-------------------------------------------------------SRI.THOMAS GEORGE, HOTEL ZION, KOZHENCHERRY.

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THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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H.L.DATTU, C.J. & K.T.SANKARAN, J.

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S.T.Rev.No.76 of 2005 -----------------------------------------Dated, this the 11^th day of March, 2008

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ORDER

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H.L.Dattu, C.J.

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The only question that would arise for our consideration and decision in this revision petition is whether the Kerala Sales Tax Appellate Tribunal is justified in holding that when the empty bottles and cartons have already suffered tax along with the contents, there cannot be any fresh levy on the sale of empty bottles.

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Respondent is a dealer registered under the Kerala General Sales Tax Act, 1963 ('the Act' for short). He is engaged in the business of sale of Indian Made Foreign Liquor. During the course of his business activity he has also effected sale of empty bottles to the tune of Rs.69,000/- for the assessment year 1995-96.

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The assessing authority has levied tax on the sale of empty bottles. Aggrieved by the said levy the assessee had carried the matter in appeal before the first appellate authority. The appellate authority has confirmed the levy of tax on the sale of empty bottles by the respondent/dealer. The Tribunal in the appeal filed by the assessee has reversed the findings of the assessing authority as well as the first appellate authority. The finding and conclusion reached by the Tribunal in this regard is as under:

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“The other contention of the assessee is regarding the assessment on the turnover of empty bottles and cartons. Since the tax on empty bottles and cartons has already suffered tax along with the contents, the levy of tax on these items are illegal. We, therefore, direct the assessing authority to delete the levy of tax on these items.”

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S.T.Rev.No.76 of 2005

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The Revenue being aggrieved by the aforesaid finding and

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conclusion reached by the Tribunal has presented this revision petition.

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The question of law framed by the Revenue is as under:

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“Whether on the facts and in the circumstances of the case, the Tribunal is justified in deleting levy of tax on empty bottles sold at Bar Attached Hotel.”

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The answer to the question of law framed by the Revenue need not detain us for long, in view of what has been held by a Division Bench of this Court in the case of M/s.K.Sreedharan & Co.(P) Ltd., Kannur v. State of Kerala (2000) 8 KTR 480. In the said decision a Division Bench of this Court has observed as under:

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“Taxability – empty bottles of I.M.F.L. - had not suffered tax as an item – I.M.F.L. suffered tax as contained in the bottles – levy of tax on bottles is in order – K.G.S.T. Act, 1963; Section 5(5), Schedule I, Entry 156.

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On a reading of the First Schedule to the Act, it appears that prior to 1992-93, sales of empty bottles are taxable as an unclassified item. Entry 156 was introduced to the First Schedule with effect from November, 1992. After introduction of the said entry, the levy of tax therein is at the point of first sale in the State. Empty bottles as such had not suffered tax as an item falling under Entry 156 to the Schedule. IMFL had suffered tax as contained in the containers. There is no distinct sale of liquor and bottles separately. That being the position, levy of tax on the bottles is in order.”

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In view of the law laid down by the Division Bench of this Court, in our opinion, the reasoning and conclusion reached by the Tribunal on sale of empty

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S.T.Rev.No.76 of 2005

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bottles cannot be sustained by us. Therefore, we allow this revision petition and set aside the orders passed by the Tribunal in so far as the direction issued by the Tribunal to the assessing authority to delete levy of tax on the sale of empty bottles is concerned.

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Ordered accordingly.

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( H.L.DATTU) CHIEF JUSTICE

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(K.T.SANKARAN) JUDGE

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vns

State of Kerala v. Sri.Thomas George

Case brief

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State of Kerala v. Sri.Thomas George

Case brief

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