Allowed

G.K.Granites v. State of Kerala

Kerala HC17 Dec 2018OT.Rev/90/2018

Case brief

AI extract

What is this about?

Quarry operators were held entitled to concessional CST rates on inter-State purchases of HSD used to operate quarrying machinery despite the post-GST restriction of goods. The court treated quarrying as mining, allowed the revisions, set aside the impugned orders and directed restoration of CST registration with HSD replacing the broader fuel entry.

What did the court decide?

Impugned orders set aside; CST registration restored with HSD replacing the broader fuel entry; concessional rate allowed for inter-State HSD purchases used in quarrying.

G.K.Granites Vs State of Kerala — GST and Indirect Tax | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940

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OT.Rev.No. 85 of 2018

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AGAINST THE ORDER/JUDGMENT IN TAVAT 433/2018 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM DATED 27-07-2018

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REVISION PETITIONER/S:

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M/S. G.K. GRANITES LIMITED, KUREEKKAL, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT, PIN - 683 562.

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BY ADVS. SRI.N.JAMES KOSHY SRI.T.SANJAY

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RESPONDENT/S:

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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BY ADV. GOVERNMENT PLEADER

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OTHER PRESENT:

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SRI MOHAMMED RAFIQ SR GP

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THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 17.12.2018, ALONG WITH OT.Rev.90/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.T.Rev. Nos. 85/2018 & 90/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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MONDAY ,THE 17TH DAY OF DECEMBER 2018/26TH AGRAHAYANA, 1940

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OT.Rev.No. 90 of 2018

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AGAINST THE ORDER/JUDGMENT IN TAVAT 434/2018 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM DATED 27-07-2018

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REVISION PETITIONER/S:

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G.K.GRANITES OORAKKAD, KOZHAKKAMBALAM PO, ERNAKULAM DISTRICT, PIN 683 562

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BY ADV. SRI.N.JAMES KOSHY

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVT SECRETARIAT, THIRUVANANTHAPURAM 695 001

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BY ADV. GOVERNMENT PLEADER

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THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 17.12.2018, ALONG WITH OT.Rev.85/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.T.Rev. Nos. 85/2018 & 90/2018

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(OT Rev. Nos. 85/2018 & 90/2018)

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O R D E R

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Vinod Chandran, J

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Two questions arise from the order of the Tribunal; as to (i) whether the activity of quarrying carried on by the petitioner/assessee can be termed “mining” as referred to in Section 8(2) (b) of the Central Sales Tax Act, 1956 (for brevity “the CST Act”) and (ii) whether after the introduction of the goods and services tax enactments and the restrictive meaning of goods adopted under the CST Act, the petitioner/assessee can be allowed to have continued; HSD, in his certificate of registration under the CST Act, enabling him to claim concessional rate for the inter-State purchases made.

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2. Admittedly, after the implementation of

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the goods and services tax regime the definition of

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goods under Entry 54 of List II of the VII^th Schedule of the Constitution of India was amended, to restrict it to specific petroleum products and alcoholic liquor for human consumption. The Assessing Officer by Annexure A order, revoked the authorization granted to the assessee to effect inter-State purchase of “fuel elements-all fuels” and deleted the said entry from the certificate of registration granted under the CST Act. The returns filed in Form No.10 of the Kerala Value Added Tax Act, 2003(for brevity “KVAT Act”) for the months of July, September and October 2017 were hence rejected.

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3. The assessee was in first appeal which

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was rejected by Annexure B. A second appeal also proved unsuccessful. The Tribunal looked at the definition of goods as amended and now existing under Section 2(d) of the CST Act as also the distinction between “mining” and “quarrying” as

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understood in common parlance. The assessee had claimed that a company Indian Rare Earths Ltd., was allowed to be continued to have the benefit under the CST Act of a concessional rate for inter-State purchases of HSD fuel used in their mining activity. The Tribunal looked at the dictionary meaning of 'mining' and 'minerals' and found that mining involves getting valuable or useful mineral from the earth; for example coal, diamond and gold. A mineral was given the meaning tin, salt or sulphur found naturally in rock and earth. It was hence held that quarrying granite metals is entirely different from mining of minerals. We immediately note our difference of opinion to the said finding even going by the definitions as extracted by the Tribunal from the Collins Dictionary. Granite metal is also valuable and useful and is also found naturally in the earth. Hence even going by the definition as extracted by

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the Tribunal, it cannot be found that granite metal is not a product of mining or is not included in the definition of a mineral. The Tribunal seems to have been more concerned about the chemical combination rather than the clear meaning as decipherable from the extracts. The extracted definitions also did not provide an exhaustive list of the minerals. The extracts made by the Tribunal does not provide a safe guide for interpretation.

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4. The learned Counsel appearing for the

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assessee relies on D.K. Trivedi and Sons v State of Gujarat [1986 AIR 1323 SC] to contend that mining and quarrying are analogous activities which do not call for any distinction. The reference to mining in the CST Act has to be considered to be a reference to quarrying also since in both activities there is extraction from the earth. The only distinction is; in quarrying operation, there

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is an open cast working carried out as

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distinguished from an excavation of mineral from under the earth. The assessee is also using HSD to generate electricity for the purpose of operating its machinery in the quarrying of granite metal. The quarried granite stones are then sold as such or as aggregates, both of which are taxed under the goods and services tax enactments. Granite metal thus sold are goods coming within the definition of Section 2 (52) of the Central Goods and Services Tax Act (for brevity “the CG&ST Act” ) and the Kerala Goods and Services Tax Act (KG&ST Act). The restrictive definition now introduced in the CST Act does not at all affect the concessional rate granted to HSD which is retained as goods under the CST Act. The CG&ST Act and the KG&ST Act also by Section 9(2) recognizes the said inclusion under the general sales tax regime even after the introduction of goods and services tax regime and empowers the Government to notify; the date from

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which the specified petroleum products are to be levied the central tax on its supply under the new regime, on the recommendation of the Council. Till then the power to levy tax on alcoholic liquor for human consumption and specified petroleum products are confined to the States. The revocation of HSD purchased by the petitioner inter-State, from the CST registration certificate, thus dis-entitling the petitioner from concessional rate,is illegal; is the compelling argument of the learned Counsel for the petitioner.

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5. The learned Senior Government Pleader however, seeks to draw a distinction in the operation of mines and quarries as has been found by the Tribunal. The learned Government Pleader refers to the Mines Act, 1952 to specifically point out that Section 2(j) defines mine and clause (kk) defines open cast working, the latter of which is

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considered to be a quarrying operation as

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distinguished from mining. Though the open cast work is also included under the definition of mine, there is a distinction in the operations carried on. A mining activity necessarily requires excavation from under the soil, of valuable minerals whereas quarry, especially that of granite metals, requires only an open cast working. The decision of the Hon'ble Supreme Court in M aheshwari Fish Seed Farm v. Tamil Nadu Electricity Board and others [(2004) 4 SCC 705] is relied on to argue that with respect to exemption, the provisions have to be construed very strictly and there cannot be even reference to other legislation where two activities are considered to be similar especially when we are looking at a fiscal legislation as distinguished from a regulatory one. In the aforesaid case, the consumer had attempted to claim exemption from electricity tariff for a

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fish farm, terming it to be an agricultural

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activity. The reference to other legislation wherein the activities were treated similarly was found to be not possible of reliance. The learned Senior Government Pleader also refers to an English decision and a decision from the USA, respectively reported in Vol.XIII House of Lords and Privy Council 657[Lord Provost and Magistrates of Glasgow

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v. Farie] and 116 U.S 11 Marvel v. Merritt, late Collector, to further advance the contention of the distinction of a mine and quarry.

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6. The learned Senior Government Pleader also takes us to the restrictive meaning of goods as available in clause 2(d) of the CST Act. Goods, as now included in the CST Act speaks only of (i) Petroleum crude oil (ii) high speed diesel (iii)motor spirit (commonly known as petrol (iv) natural gas (v) aviation turbine fuel and (vi) alcoholic liquor for human consumption. With the restrictive meaning in the background, the learned

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Senior Government Pleader takes us to Section 8 (3) (b) of the CST Act. It is argued that the goods as indicated under sub-clause 2(d) should either be re-sold or manufactured or processed and only then there could be a concessional rate applied. The “goods for sale” as used under sub-clause (b) under Section 8(3) has to be that coming under Section 2(d) of the CST Act, is the compelling argument. The argument is to the effect that either HSD purchased should be resold or used to produce any other goods defined under Section 2(d), and only then the concessional rate apply.

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7. We have to first deal with the question

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of whether mining and quarrying are different activities We cannot but observe that the provisions of the Mining Act, 1952 and the decision of the Hon'ble Supreme Court in Maheswari Fish

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Seeds Farm actually aids the petitioner. Maheswari Fish Seeds Farm was considering an

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exemption as available to power tariff, which was permitted to agricultural activities. The assessee who was carrying on a fish seed farm claimed that pisciculture also comes within agriculture. The Hon'ble Supreme Court relied on the decision in CIT West Bengal Vs. Benoy Kumar Sahas [1957] 32 ITR 466 (SC) which interpreted the term agriculture as occurring in Section 2(1) of the Income Tax Act, 1961 defining 'agricultural income'. It was held that the term need not be confined to production of food grains and food products but could include all products of land involving human labour. The interpretation should be one advancing the object of the legislation and in the context of free power enabled to agriculture, it was held so :

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13. The relevant entry in the Act as its historical background shows was intended to provide electricity at concessional rates or free of any charge to the farmers by dividing them

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into classes such as small farmers and other farmers. A farmer would be an agriculturist in the traditional sense and narrow meaning of the term. A person engaged in aquaculture or fish farming would not be called a farmer. Neither the legislature while enacting

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the Schedule to the Act as it originally stood nor the State Government issuing the notification amending the Schedule can be attributed with the intention that they had intended to make available electricity at concessional rate or without charge to aquaculturists whose activity is purely commercial. We are also not prepared to hold that in the circle of agriculturists fish farming is understood as agriculture.

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14. In our opinion, for the purpose of interpreting the Act and the notification issued thereunder, the term “agriculture” has to be read in contradistinction with the term “aquaculture”. Pisciculture is a branch

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of aquaculture. Pisciculture is not agriculture.

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8. It is in this context that the Hon'ble

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Supreme Court refused to look into the provisions in other legislation, which treated agriculture as including pisciculture. In the context of the specific statute, it was held that such reference to other statutes and the definition therein would not be helpful in finding out the meaning to be assigned to a term of common parlance, as used in altogether different settings. We bow to the fore stated dictum and find herein that the common parlance meaning would be one in-consonance with the definition as given under the Mines Act and this would also harmoniously fit into the objects of the fiscal legislation.

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9. As we noticed, while recording the arguments of the learned Senior Government Pleader the definition of mines under section 2(j) of Mines

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Act, takes within its ambit open cast working under sub-clause(iv). The open cast working though is defined separately under clause (kk), the same has been included in the definition of mine. We find that mine is the genus of which quarrying would be the species. In common parlance also one has to understand mining and quarrying as similar activities and the distinction as per the various enactments being the Mines Act and Mines and Minerals (Development and Regulation) Act,1957 (MMDR Act) are only to advance the regulatory regime. Open cast working does not require the safety standards, required in excavations from under the surface soil. Under the MMDR Act, powers are conferred on the Union and the State in the matter of granting permits respectively of major minerals and minor minerals. MMDR Act speaks of the Central Government having been conferred with the power to grant mining permits with respect to major

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minerals and State Governments having been conferred with the power to grant quarrying permit with respect to minor minerals.

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10. The distinction in the regulatory legislation does not at all commend us to adopt such a distinction insofar as the fiscal legislation of CST is concerned. In fact such a course, of adopting the distinction under the regulatory enactments, to the fiscal enactment has been deprecated by the Hon'ble Supreme Court in Maheswari Fish Seeds Farm .

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11. As found by us, the regulatory

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enactments treated it as two different activities, for the purpose of demarcating the power of the Central and State Governments, as also to apply different safety standards; which objects do not have any relevance as far as the fiscal legislation is concerned. The mineral extracted, whether it be on an open cast working or excavation from under

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the surface soil, does not govern the taxing power. The decisions under the said enactments also indicate that but for the issuance of permits, the activities of mining and quarrying have been judicially recognized as one and the same. We refer to the decision of the Honoruable Supreme Court in D.K.Trivedi and Sons (supra) , which found that “quarry leases are, therefore, included in the term mining leases”, in para 52 of the said decision. We also notice the decisions in AIR 1976 SC 1393 [Bhagwan Dass v. State of UP and Others] and AIR 1979 SC 1669 [Shri.Tarakeshwar Sio Thakur Jiu v. Bar Dass Dey and Co. and others], which decisions were considered by one of us in Basheer Vs. District Collector 2017 (1) KLT 201 as follows:

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“8. Bhagwan Dass held that the Act of 1957 and the Rules of 1963 (U.P. State

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rules) "shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any mineral. 'Winning' does not imply a hazardous or perilous activity. The word simply means 'extracting a mineral' and is used to generally indicate any activity by which a mineral is secured. 'Extracting' in turn, means drawing out or obtaining. A tooth is 'extracted', as much as is fruit juice and as much as a mineral. Only, that the effort varies from tooth to tooth from fruit to fruit and from mineral to mineral." (sic-paragraph 13). Tarkeshwar Sio Thakur Jiu held so: "It is true that in the definition of 'mine' the term 'excavation' in the ordinary sense, means 'hole' 'hollow' or 'cavity' made by digging out. But the word 'any' prefixed to 'excavation' in the context of the phrase 'for the purpose of searching for or obtaining mineral' gives it a much more extensive connotation, so that every 'excavation' be it in the shape of an

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open-cast cavity or a subterranean tunneling, will fall within the definition of 'mine'. Similarly, it is not a requirement of the definition of 'mining operation' that the activity for winning the mineral must necessarily be an underground activity. The essence of 'mining operations' is that it must be an activity for winning a mineral, whether on the surface or beneath the surface of earth." (sic-paragraph)”

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( underlining by us for emphasis)

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12. The CST Act is intented at regulating inter-state trade and commerce and the concessional rate for interstate purchases for the purpose of resale or manufacture is to mitigate the tax effect on the final product thus ensuring that the end consumer is not overburdened by reason of the cascading effect of tax. The concession provided is

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restricted to the goods as retained under the general sales tax enactment and the CST Act, since the interstate trade as is the intrastate trade of other goods are now under the Union and State legislation levying tax on both goods and services.

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The object and purpose of the provision of concession of inter-state trade of goods now retained under the general sales tax regime does not at all alter. This is more so since by introduction of the goods and services tax regime there is levied a uniform tax on the goods coming thereunder and the taxation also is destination based, in so far as inter-state transactions are concerned. However with respect to goods retained under the general sales tax law the taxation remains to be origin based.

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13. Herein HSD which is retained under the

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general sales tax laws would be taxable at the State of purchase and the intention in providing

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for a concession under Section 8 of the CST Act, is to provide a manufacturer or reseller to pay the concessional rate in the State, from which the transaction originates and then again subject it to resale or manufacture, in the destination State where there is a further tax levied on resale or sale of the manufactured product. Nothing revloves on whether the activity is an open cast work or underground excavation. Either way, the product or mineral excavated is sold with tax levied on such sale. Hence, we have to understand the terms mining and quarrying, for the purpose of the Central Sales Tax Act, to be similar.

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14. As for the English and US decisions relied on, we notice the observation made by the Honourable Supreme Court in [1976] 1 SCC 324 [Indian Chamber of Commerce v. Commissioner of Income Tax]; as under:-

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We do not think it necessary to discuss the various decisions of the High Courts cited before us nor need we seek light from the English cases either. After all, Indian law must bear Indian impress derived from Indian life.

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15. Even then, we have looked at the

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decisions. In Lord Provost and Magistrates of Glasgow the issue arose in the context of a specific legislation, the Waterworks Clauses Act, 1847 and the reservation made in a conveyance in terms of the said enactment. While inquiring into the meaning of mines, to decide whether clay was a mineral or not, each of the Law Lords emphasized the decision to be only in the context of the statute and the area in which the issue arose.

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16. We extract the following, from the concurring views, which held clay to be not included in the exception provided under the statute, to minerals; to find that the reservation

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to work the minerals under the soil cannot be permission to the seller to work the clay to the destruction or injury of the purchasers estate.

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Lord Halsbury L.C

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“I still think (to use his language) that a grant of “mines and minerals” is a question of fact “what these words meant in the vernacular of the mining world, the commercial world, and landowners,” at the time when they were used in the instrument.”

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Lord Watson:

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“Mines” and “minerals” are not definite terms: they are susceptible of limitation or expansion, according to the intention with which they are used.”

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“The word “quarry” is, no doubt, inapplicable to underground excavations; but the word “mining” may without impropriety be used to denote some quarries. Dr.Johnson defines a quarry to be a stone mine”.

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Lord Macnaghten:

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But however the word may be used, when we speak of mines in this country, there is always some reference more or less direct to underground working.”

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17. MARVEL, based itself on the definition

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of 'mines' in Websters which defined it as: " a pit or excavation in the earth from which mettalic ores or other mineral substances are taken by digging, duistinguished from the pits from which stones only are taken, and which are called quarries".

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18. We do not seek or find any assistance

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from the aforestated decisions since we are called upon to interpret the word "mining" as it appears in a fiscal legislation on the basis of the intention with which the same has been included in the provision which provided for a concessional rate. The intention is to provide the concessional rate in inter-state trade where the specific goods

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are purchased for re-sale or for use inter alia in the manufacture or processing of goods, in mining, telecommunications and generation or distribution of electricity or any other form of power. The essential object is to lessen the tax burden when there is a further sale by itself or after manufacture or processing. In mining on the excavation of minerals, they are taxable at the next instance of sale. We also noticed from the Mines Act and the MMDR Act that though mines and quarries are treated differently for regulatory purposes, both are similar activities involving excavation; be it open cast working or subterranean tunneling. In the Indian context and in the context of the legislation we hold that the mining refered to in the CST Act includes quarrying.

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19. Having held that quarrying activity carried on by the petitioner would come within the

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term 'mining', definitely, the petitioner's

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quarrying operation has to be considered to be one, to which Section 8(3)(b) is applicable. The further contention of the learned Senior Government Pleader is that the 'goods' as referred to in clause (b) has to be understood as the goods specifically defined under the CST Act. We have a different opinion, especially giving a purposive interpretation to the provision; even after amendment. The definition clause stood amended by restricting the definition of goods under Section 2(d). The restriction of goods under Section 2(d) was specifically taking into account the coverage of all other goods under the goods and services tax enactments, uniformly implemented throughout the country. The Union Parliament, excluded certain goods, viz: specific petroleum products and alcoholic liquor, from the goods and services tax regime and allowed its continuance under the general sales tax regime. This was the case, even

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when the Value Added Tax regime was introduced. We immediately notice that under the Value Added Tax regime, all fuel elements were placed under the general sales tax regime, whereas on implementation of the goods and services tax, specific petroleum products and alcoholic liquor, as found now in Section 2(d) of the CST Act, alone were retained under the general sales tax enactment.

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20. We have no doubt that with respect to the goods being intended for re-sale, one has to look at the definition under Section 2(d). However, when the use is in the manufacturing or processing of goods for sale or in the telecommunication network or in mining or in the generation or distribution of electricity or any other form of power; there could be no restrictive meaning applied to the term "goods for sale". The "goods for sale" in the second limb of the provision has to be taken as referring to a common

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category, which is exigible to tax under one or other enactment within a State in the Country. In these circumstances, we respectfully and approvingly refer to the Division Bench judgment of the Punjab and Haryana High Court in Carpo Power Ltd. v. State of Haryana and Others as produced by the assessee along with a memo as document No.7.

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21. In, Carpo Power Ltd. the question raised was the issuance of C-forms in respect of natural gas purchased by the assessee, for generation of electricity. The specific contention taken by the State of Haryana was similar to that taken by the State of Kerala before us. We refer to paragraphs 17 to 20 of the aforesaid judgment:

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“17. The definition of `goods' in section 2(52) of the CGST Act is very wide. It includes every kind of movable property, excluding money and securities but including actionable claims, growing crops, grass and

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things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply. Section 9(2) of the CGST Act provides that petroleum crude, high speed diesel, motor spirit, natural gas and aviation turbine fuel shall be levied tax under the CGST Act from the date as notified by the Government on the recommendations of the Council. Sections 2(52) and 9 (2) of the HGST Act are similar to Sections 2(52) and 9 (2) of the CGST Act.

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It is pertinent to note that till date, the Government has not issued a notification under either the CGST Act or the HGST Act. Hence inter-state sale of natural gas continues to be governed by the CST Act.

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18. Section 174 of the HGST Act, 2017 repeals the Haryana Value Added Tax Act, 2003 (for short, `HVAT Act'), except in respect of goods included in the entry 54 which as noted above

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includes natural gas. Thus the HVAT Act, 2003 continues to remain in operation qua natural gas. Moreover under Section 9(2) of the HGST, 2017, the State tax inter-alia on natural gas shall be levied with effect from such date as may be notified by the Government. The Government has not as yet notified a date.

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19. The net effect therefore is that even after the implementation of the CGST Act, the items mentioned in amended entry 54 are governed by the CST Act. Further, a notification under Section 9(2) of the HGST Act, 2017 not having been issued natural gas continues to be covered under the CST Act.

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20. After the implementation of the CGST Act and the aforesaid amendment, the petitioner continued to make inter-state purchases of natural gas from the Oil Companies in Gujarat as before. When it applied for the issuance of `C' Forms, the Sate of

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Haryana refused the same. The stand taken is that after the implementation of the CGST Act, the petitioner is not entitled to make inter-state purchases of natural gas on the strength of `C' Forms.”

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22. We notice that the provisions are in

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pari materia in so far as the legislation of the State of Kerala and Haryana. The reference herein above is to the Haryana Goods & Services Tax Act, the provisions of which are similar to the KG&ST Act; both having adopted mutatis mutandis the provisions of the CG&ST Act. The contention there, of the State, was also that Section 8 of the CST Act would be applicable only if the subsequent sale, by way of resale or of manufactured goods, are the goods seen under the definition clause 2(d) of the CST Act, and are taxable under the state VAT Act. In the State of Kerala petroleum products always remained under the Kerala General Sales Tax

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Act and the contention is identical, only with the difference that here the State asserts applicability of CST Act only if the subsequent sale of goods, even after manufacture is under the KGST Act ie: of the goods under the KGST Act.

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23. As noticed by the Punjab & Haryana High Court, Section 2 (i) of the CST Act defines 'sales tax law' as any law for the time being in force in the state or any part thereof providing levy of taxes on the sale of goods generally or expressly on any specified goods. The KG&ST Act and CG&ST Act are the taxation enactments in force in the State of Kerala with respect to sale of goods, the incidence of levy being now on the supply of such goods.

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24. We also notice that Carpo Power Ltd. has been approved by the Honorable Supreme Court insofar as the Special Leave Petition having been dismissed as revealed from document No.9. We,

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hence, are of the opinion that the assesseerevision petitioner is entitled to get the concessional rate as available under the CST Act for the HSD used in its quarrying activity which is confined to the activity of operation of machinery for the purposes of quarrying.

¶188

25. The learned Senior Government Pleader

¶189

raised a further argument that the assessee did not have a KGST registration for the purpose of claiming such exemption. We do not think such an argument can be raised at this stage and we also find the argument to be without any basis. It is an admitted fact that the assessee was having a CST registration and was enabled the concessional rate for the HSD used in its mining activity during the KVAT regime. Under the VAT enactment also, petroleum products were covered under the KGST Act. The registration under the CST Act necessarily would enable an assessment under that Act without a

¶190

::34::

¶191

O.T.Rev. Nos. 85/2018 & 90/2018

¶192

separate registration under the KGST Act. The assessee is not a dealer in the products which have been retained under the General Sales Tax enactment. If the assessee is involved in re-sale of those products under the KGST Act, within the State, there should have been a registration under the KGST Act. The assessee's contention is confined to use of such goods as covered under the general sales tax enactment in the mining activity carried on by the assessee, that too confined to the interstate purchases. The CST registration would suffice insofar as the claim for concessional rate. This is the purport of Section 7 (2) of the CST Act, which enables any dealer having a place of business within a State, liable to pay tax under the sales tax law applicable to the State, to obtain registration under the CST Act.

¶193

26. On the reasoning as arrived at by us,

¶194

we hold the action of the lower authorities and the

¶195

O.T.Rev. Nos. 85/2018 & 90/2018

¶196

::35::

¶197

impugned orders to be illegal and arbitrary. We, hence, set aside the orders of the AO as also the first appellate authority and the Tribunal. We direct the Certificate of Registration under the CST Act to be restored but amended, including 'HSD' substituting the words 'fuel elements-all fuels' The assessee would be entitled to concessional rate for the inter-state purchases made by it for use in its quarrying activity, which has abeen found by us to be mining as included under Section 8(3)(b) of the CST Act.

¶198

The revision stands allowed leaving the parties to suffer their respective costs.

¶199

Sd/K. Vinod Chandran, Judge

¶200

jma/jg

¶201

Sd/Ashok Menon, Judge

¶202

O.T.Rev. Nos. 85/2018 & 90/2018

¶203

::36::

¶204

APPENDIX OF OT.Rev 85/2018

¶205

PETITIONER'S/S EXHIBITS:

¶206

ANNEXURE A

¶207

TRUE COPY OF ORDER NO.32151370735/201718 DATED 9.1.2018 OF THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX, PERUMBAVOOR

¶208

ANNEXURE B TRUE COPY OF ORDER KVATA NO.441A/18 DATED 21.4.2018 OF THE DEPUTY COMMISSIONER (APPEALS) V, ERNAKULAM

¶209

ANNEXURE C CERTIFIED COPY OF THE ORDER IN TA(VAT).433/2018 DATED 27.7.2018 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM

¶210

O.T.Rev. Nos. 85/2018 & 90/2018

¶211

::37::

¶212

APPENDIX OF OT.Rev 90/2018

¶213

PETITIONER'S/S EXHIBITS:

¶214

ANNEXURE-A A TRUE COPY OF ORDER NO.32151382852/2017-18 DATED 09.01.2018 OF THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, STATE GOODS & SERVICE TAX, PARUMBAVOOR

¶215

ANNEXURE-B TRUE COPY OF ORDER KVATA NO.442 A/18 DATED 21.04.2018 OF THE DEPUTY COMMISSIONER (APPEALS) V, ERNAKULAM

¶216

ANNEXURE-C CERTIFIED COPY OF HE COPY OF THE ORDER IN TA (VAT) NO434/2018 DATED 27.07.2018 OF THE ADDITIONAL BENCH, ERNAKULAM

¶217

XXX

G.K.Granites v. State of Kerala

Case brief

What is this about?

What did the court decide?

G.K.Granites v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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