Kerala High Court
Sivaprasad G vs The Commercial Tax Officer on 17 February, 2012
Author: Babu Mathew P. Joseph
Bench: C.N.Ramachandran Nair, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934
WA.No. 804 of 2012 () IN WPC/36793/2010
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AGAINST THE JUDGMENT IN WPC.36793/2010 DATED 17-02-2012
APPELLANT/PETITIONER:
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SIVAPRASAD G.
PROPRIETOR, PGK DISTRIBUTORS, CHATHANNOOR
KOLLAM.
BY ADV. SRI.K.M.FIROZ
RESPONDENTS/RESPONDENTS:
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1. THE COMMERCIAL TAX OFFICER
CHATHANNOOR.
2. THE INTELLIGENCE OFFICER,
(INVESTIGATION BRANCH), COMMERCIAL TAXES
NEETHI NAGAR, PATTAMTHANAM P.O., KOLLAM-691 021.
3. THE INSPECTING ASSISTANT COMMISSIONER
(INVESTIGATION BRANCH), COMMERCIAL TAXES
NEETHI NAGAR, PATTAMTHANAM P.O., KOLLAM-691 021.
BY G.P. SRI.BOBBY JOHN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-04-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.N.RAMACHANDRAN NAIR, &
BABU MATHEW P. JOSEPH, JJ.
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Writ Appeal No.804 of 2012
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Dated this the 13th day of April, 2012.
JUDGMENT
Ramachandran Nair, J.
Writ Appeal is filed against judgment of the learned Single Judge directing the appellant to seek clarification on tax liability on the product from the authority under Section 94(1) of the KVAT Act. Appellant's specific case is that the product should be referred for technical advice from Central Institute of Fisheries Technology and Central Excise Department for clarification on HSN Code. We do not think there is any need for this court to instruct the authority as to whose advice he should take before clarifying rate of tax on the product or exemption available under the Entry provided in the First Schedule.
2. The item involved is said to fishing rope on which exemption is claimed. The question to be considered is whether the item is exclusively manufactured for use as fishing rope or whether it is for incidental use or in other words, among the multi-purpose use it can W.A. 804/2012 2 also be used for attachment to fishing nets and for other fishing devices. We feel the concerned authority can easily collect samples, verify market for the same after verifying with Matsyafed, Fisheries Co-operative Societies and even by arranging inspection of fishing nets generally used by fishermen through subordinate officers. We, therefore, do not find any necessity for referring the matter to Central Institute of Fisheries Technology which also may be familiar with fishing devices. We dispose of the appeal directing the appellant to make application before the authority under Section 94(1) of the KVAT Act and furnish all the data and materials including copies of the invoices raised on various dealers for the authority to recheck with resale made by such dealers and to see whether ultimate destination of the product is only fishermen for the purpose of use in fishing. We make it clear that atleast if the predominant use is for fishing purposes, the fact that somebody may incidentally use the product for other purpose, should not deny the benefit. On the other hand, a multi- purpose item should not be confined to the exempted category merely because it is used for fishing also. Appellant is granted three weeks W.A. 804/2012 3 time from now to apply for clarification and there will be direction to the statutory authority to issue clarification within two months thereafter. Pending clarification we direct the Assessing Officer to consider the claim in his own way and he is free to decide on the claim of exemption or rate of tax as part of adjudication. However, as and when clarification is issued, order will be modified in terms of the clarification, if it is at variance with the adjudication order. Appellant will be heard and will be given opportunity to produce whatever is the documents they want to rely on in support of their claim.
C.N.RAMACHANDRAN NAIR Judge BABU MATHEW P. JOSEPH Judge pms