Kerala High Court
Casino Hotel vs State Of Kerala on 21 December, 2001
Equivalent citations: [2004]138STC377(KER)
Author: C.N. Ramachandran Nair
Bench: C.N. Ramachandran Nair
JUDGMENT S. Sankarasubban, J.
1. These two Tax Revision Cases are filed against the common judgment of the Sales Tax Appellate Tribunal, Additional Bench II, Ernakulam in T.A. Nos. 354 and 355 of 1995. The assessment years are 1989-90 and 1990-91. The assessing authority found that the assessee is liable to sales tax on the purchase turnover of certain goods taxable at the last purchase point such as prawns, lobster, groundnut, etc. It was further found that the assessee was liable to tax on the purchase turnover of prawns, lobsters, groundnut, etc.
2. Aggrieved by the assessment, the assessee filed an appeal before the appellate authority. The appellate authority confirmed the order of the assessing authority. Against that an appeal was filed before the Tribunal. The Tribunal also dismissed the appeal. It is against that the present revision is filed.
3. The first point urged by the learned counsel for the revision petitioner is that in so far as the purchase turnover of certain goods at the last purchase point of goods such as prawns, lobster, groundnut, etc., are concerned, the assessee is not liable to pay tax. According to the assessee, these were sold locally and are local sales and the appellant is not the last seller and is therefore not liable to tax. As rightly pointed out by the Tribunal, the items purchased were not sold as such. Prawns, lobsters, groundnut, etc., purchased were cooked and sold as cooked food. Therefore the items are taxable.
4. In this context, it is relevant to rely on a decision of the Supreme Court reported in Assistant Commissioner (Intelligence) v. Nandanam Construction Company [1999] 115 STC 427 ; (1999) 7 KTR 651. In that case, it was held that purchase tax will be attracted when such goods are consumed in the manufacture of other goods or are consumed otherwise. There is no dispute that the goods are the same.
5. The next contention was with regard to mineral water. According to the assessee at the relevant time, there was no separate provision for mineral water. But according to the assessee, it was beverages and hence it is liable to tax under entry 127. But the department took the view that since there was no specific entry, it comes under the residuary entry. It is pertinent to note that subsequent to the assessment years in question, mineral water is included in entry 87. But we are concerned with the question for the years 1989-90 and 1990-91. The question is whether the mineral water is the same as beverages. Beverage has been defined as a drink for example, tea, alcohol, etc. In Malayalam-English Dictionary, beverage is given the meaning of "Paniyam,(Word in Malayalam transliterated in English)". So far as mineral water is concerned, it is a water "that comes from a natural spring and often contains minerals that the thought to be good for your health". So far as our country is concerned, we don't think, mineral water is taken as beverage. Hence, we are not able to accept the contention of the counsel for the assessee that mineral water comes under beverage.
6. Another contention taken before the Tribunal was against certain turnover assessed under section 5A. The Tribunal relied on the decision reported in Assistant Commissioner (Intelligence) v. Nandanam Construction Company [1999] 115 STC 427 ; (1999) 7 KTR 651. Learned counsel for the assessee brought to our notice a decision of the Supreme Court in Transfer case (Civil) Nos. 20-24 of 1989, Reported on Indian Hotels Co. Ltd. v. Income-tax Officer [2000] 245 ITR 538. In that case, the Supreme Court was dealing with the provisions of the Income-tax Act and held that the foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetables meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or produced. Learned counsel for the assessee contended that no manufacturing process was taken place when cooked food is prepared. According to us, so far as the present case is concerned, we are governed by section 5A of the Kerala General Sales Tax Act, 1963. It takes not only manufacture, but also consumption.
In the above view of the matter, we don't find any ground to interfere with the order of the Tribunal. Tax revision case is dismissed.