Kerala High Court
South Travancore Distilleries And ... vs State Of Kerala Represented By The on 2 September, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936
WP(C).NO. 31659 OF 2008 (R)
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PETITIONER(S):
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SOUTH TRAVANCORE DISTILLERIES AND ALLIED
PRODUCTS, MARUTHOOR, NEYYATTINKARA
THIRUVANANTHAPURAM, REPRESENTED BY ITS
WORKS MANAGER SRI.GIRISH GOPAL.
BY ADV. SRI.A.KUMAR
RESPONDENT(S):
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1. STATE OF KERALA REPRESENTED BY THE
SECRETARY TO GOVERNMENT, TAXES (B), DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2. THE COMMISSIONER OF COMMERCIAL
TAXES, THIRUVANANTHAPURAM
3. THE DY.COMMISSIOENR OF APPEALS
THIRUVANANTHAPURAM.
4. THE ASST. COMMISSIONER (ASSMT)
SPECIAL CIRCLE, THIRUVANANTHAPURAM.
5. KERALA STATE BEVERAGES (MANUFACTURING
AND MARKETING)CORPORATION LIMITED
SASTHA GROUP OFFICE COMPLEX, SASTAMANGALAM
THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY.
R5 BY ADV. SRI.C.S.AJITH PRAKASH
BY SRI.ELVIN PETER
BY GOVERNMENT PLEADER SMT.K.T.LILLY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).NO. 31659 OF 2008 (R)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE LICENSE ISSUED IN RESPECT OF ACTIVITY OF
COMPOUNDING AND BLENDING AS PER THE KERALA FOREIGN LIQUOR
(COMPOUNDING BLENDING AND BOTTLING) RULES, 1975
EXT.P2: TRUE COPY OF THE LICENSE ISSUED FOR BOTTLING OF LIQUORS UNDER
THE KERALA FOREIGN LIQUOR (COMPOUNDING BLENDING AND BOTTLING) RULES,
1975
EXT.P3: TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 45A DATED
2.9.2005
EXT.P4: TRUE COPY OF THE ORDER OF THE ASSESSING AUTHORITY DATED
31.10.2005 FOR THE ASSESSMENT YEAR 2000-2001
EXT.P5: TRUE COPY OF THE DEMAND NOTICE FOR TURNOVER TAX IN PURSUANCE
OF EXHIBIT P4
EXT.P6: TRUE COPY OF THE DEMAND NOTICE FOR INTEREST IN PURSUANCE OF
EXHIBNITP4
EXT.P7: TRUE COPY OF THE ORDER DATED 15.6.2006 OF THE ASSESSING
AUTHORITY
EXT.P8: TRUE COPY OF THE DEMAND NOTICE FOR TURNOVER TAX
EXT.P9: TRUE COPY OF THE DEMAND NOTICE FOR INTEREST
EXT.P10: TRUE COPY OF THE APPEAL MEMORANDUM
EXT.P11: A TRUE COPY OF THE ORDER DATED 28.10.2006 OF THE DY
COMMISSIONER(APPEALS)
EXT.P12: TRUE COPY OF THE NOTICE DATED 5.6.2006
EXT.P13:TRUE COPY OF THE REPLY OF THE PETITIONER DT.20.6.2008
EXT.P14:TRUE COPY OF THE ORDER DATED 15.6.2006 OF THE ASSESSING
AUTHORITY FOR THE ASSESSMENT YEAR 2001-2002
EXT.P14(A):TRUE COPY OF THE DEMAND NOTICE FOR TURNOVER TAX ASSESSED
EXT.P14(B):TRUE COPY OF THE DEMAND NOTICE FOR INTEREST
EXT.P15:TRUE COPY OF THE ORDER DATED 26.6.2006 OF THE ASSESSING
AUTHORITY
EXT.P15(A):TRUE COPY OF THE DEMAND NOTICE DATED DT.28.6.2006 TURNOVER
TAX ASSESSED
WP(C).NO. 31659 OF 2008 (R)
EXT.P15(B):TRUE COPY OF THE DEMAND NOTICE DATED 28.6.2006 FOR
INTEREST
EXT.P16:TRUE COPY OF THE APPEAL MEMORANDUM
EXT.P17:TRUE COPY OF THE ORDER DATED 28.10.2006 OF THE DY
COMMISSIONER (APPEALS)
EXT.P18:TRUE COPY OF THE ASSESSMENT ORDER DATED 10.7.2006 FOR THE
ASSESSMENT YEAR 2002-2003
EXT.P18(A):TRUE COPY OF THE DEMAND NOTICE FOR TURNOVER TAX
DT.14.7.2006
EXT.P18(B):TRUE COPY OF THE DEMAND NOTICE FOR INTEREST DT.14.7.2006
EXT.P19: TRUE COPY OF THE APPEAL MEMORANDUM
EXT.P20:TRUE COPY OF THE ORDER OF THE DY COMMISSIONER (APPEALS) DATED
28.10.2006
EXT.P21:TRUE COPY OF THE REVISED RETURN FOR THE YEAR 2000-01 FILED ON
16.8.2005
EXT.P22:TRUE COPY OF THE REVISED RETURN FOR THE YEAR 2001-02 FILED ON
16.8.2005
EXT.P23:TRUE COPY OF THE REVISED RETURN FOR THE YEAR 2002-2003 FILED
ON 16.8.2005
EXT.P24:TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF THE AMOUNT
DUE AND AMOUNT REMITTED FROM THE ASSESSMENT YEAR ENDED 1998-99 TO
2003-04
EXT.P25:TRUE COPY OF THE DETAILS OF THE AMOUNT REMITTED DURING THE
RESPECTIVE YEARS WITH BANK DETAILS
EXT.P26:TRUE COPY OF THE ORDER NO.GO (RT) NO.760/2006/TD DATED
5.12.2006
EXT.P27:TRUE COPY OF THE STATEMENT INDICATING THE DETAILS OF PAYMENT
EXT.P28: TRUE COPY OF THE COMMUNICATION OF 4TH RESPONDENT GIVING THE
TOTAL AMOUNT DUE INCLUDING INTEREST UNDER SECTION 23(3) AND 23(3A)
FROM THE ASSESSMENT YEAR COMMENCING 1998-99
EXT.P29:TRUE COPY OF THE ORDER OF THE SALES TAX TRIBUNAL IN THE CASE
OF MESSRS.ELITE SUPER MARKET AND BEVERAGES CO.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P A TO JUDGE
WP(C).NO. 31659 OF 2008 (R)
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.31659 of 2008
.............................................................
Dated this the 17th day of December, 2014
J U D G M E N T
The petitioner is a registered dealer engaged in compounding, blending and bottling of Indian Made Foreign Liquor (IMFL). The issue arising in the instant case pertains to the liability of the petitioner to pay turnover tax on that portion of its turnover which comprises of excise duty/privilege price in respect of the sale of IMFL. The petitioner essentially has two contentions namely, that they are not a distillery for the purposes of Section 5 (2C) of the Kerala General Sales Tax Act and, hence, they will not be liable to pay turnover tax as contemplated under that provision which is applicable only to distilleries. The other contention is with regard to the payments already made by the petitioner towards turnover tax. It is the case of the petitioner that while it had effected payments towards turnover tax liability, during the pendency of litigation on the issue of whether the amounts collected by way of privilege price by the Kerala State Beverages Corporation would form part of the turnover on which turnover tax had to be paid, pursuant to a resolution of the said dispute through the decision of the Supreme Court in State of Kerala and Others W.P.(C).No.31659 of 2008 2 v. Maharashtra Distilleries Ltd. And Others [2005 Vol.141 STC 358] and a clarification by the Supreme Court that no turnover tax would be payable on amounts paid by the Kerala State Beverages Corporation to the Treasury by way of privilege fee up to 05.01.1999, the respondents had appropriated the payments made by it in the interregnum, towards interest under Section 23 (3)/23(3A) of the Kerala General Sales Tax Act in terms of Section 55 C thereof. This resulted in the amounts paid by the petitioner, towards tax that was not due from it, being adjusted towards interest accrued on the said tax liability and not being available for set off against the tax liability that was attracted to the petitioner for the period after 05.01.1999. The petitioner also has a case that the compounding and blending operations carried on by it do not amount to a process of manufacture for the purposes of attracting the liability to turnover tax. In the writ petition, the assessment proceedings for the assessment years 2000-2001, 2001-2002 and 2002-2003 are stated to have culminated in Exts.P11, P17 and P20 orders of the 3rd respondent Appellate Authority. These orders are impugned in the writ petition that was filed in 2008 challenging, inter alia, the amendments to the Kerala General Sales Tax Act and Abkari Act that are brought in 2003/2004.
W.P.(C).No.31659 of 2008 3
2. It is seen that by a judgment dated 22.01.2010 in W.A.No.1225 of 2007 and connected cases a Division Bench of this Court has rejected the challenge to the amendments in the Kerala General Sales Tax Act and the Abkari Act except to the extent of holding the retrospectivity given to those provisions for the period prior to 05.01.1999 as illegal. It is also brought to my notice, by counsel for the petitioner, that against Exts.P11, P17 and P20 orders, he has already pursued his statutory remedy under the Kerala General Sales Tax Act and the said proceedings have culminated in the judgment of this Court in revisions filed against the orders of the Tribunal. Under the said circumstances, and in view of the fact that the petitioner has already exhausted his statutory remedies under the Act against Exts. P11, P17 and P20 orders during the pendency of this writ petition, the writ petition, in its challenge to the amendments to the Kerala General Sales Tax Act and Abkari Act, is disposed following the judgment dated 22.01.2010 of the Division Bench in W.A.No.1225 of 2007 and connected cases.
A.K.JAYASANKARAN NAMBIAR JUDGE mns W.P.(C).No.31659 of 2008 4