2010 (5) TMI 770 - HC - VAT and Sales Tax

Whether the conditions of notification S.R.O. No. 1090 of 1999 are satisfied in petitioner s case? Held that - Use in manufacture is accepted as consumption in manufacture and so much so, use of sand in the manufacture of concrete poles by the petitioner for supply to Kerala State Electricity Board. is nothing but consumption in manufacture. The only other condition under the notification is that such consumption in manufacture should take place within the State on which there is no controversy. The purpose of exemption, in our view, is essentially to promote the construction industry in the State. We, therefore, allow the revision by vacating the orders of the Tribunal and that of the lower authorities and by quashing revised assessment on this issue.

Summary

Issues:
Challenge to disallowance of exemption on purchase of river sand under Notification S.R.O. No. 1090 of 1999.

Analysis:
The case involved a challenge to the disallowance of exemption on the purchase of river sand under Notification S.R.O. No. 1090 of 1999. The petitioner, a registered dealer engaged in the manufacture and supply of concrete poles to the Kerala State Electricity Board, purchased sand from unregistered dealers in Kerala for use in the manufacture of electric poles. The assessing officer levied tax under section 5A of the Kerala General Sales Tax Act, 1963, as the suppliers were not registered dealers and the sand used in manufacturing electric poles had not suffered tax. The petitioner's appeals were dismissed by the appellate authorities, leading to the filing of revisions under section 41 of the Kerala General Sales Tax Act.

The main issue revolved around the interpretation of Clause 5 of the First Schedule of Notification S.R.O. No. 1090/1999, which provided for exemption. The court considered whether the conditions of the notification were satisfied in the petitioner's case. The petitioner argued that the exemption under the notification applied to the item itself, regardless of whether the tax liability was on the seller or purchaser. On the other hand, the Government Pleader contended that the condition for granting exemption required consumption within the State, excluding consumption in the manufacture and sale of goods. The court sided with the petitioner, stating that the benefit of the notification applied to the product, and the key condition was that the purchased sand was for "consumption" within the State.

Further analysis focused on whether there was consumption by the petitioner in the manufacture of concrete poles, i.e., whether the use of sand constituted consumption. Referring to clause (a) of section 5A(1) of the KGST Act, which accepted use in manufacture as consumption, the court concluded that the use of sand in manufacturing concrete poles for supply within the State qualified as consumption in manufacture. Emphasizing the promotion of the construction industry in the State as the purpose of the exemption, the court allowed the revision, overturning the orders of the Tribunal and lower authorities, and quashing the revised assessment on this issue.