2020 (1) TMI 94 - HC - VAT and Sales Tax

Validity of assessment order - Classification of goods - entry of unmanufactured tobacco into the local area - whether the commodity falling under Sl.No.11 of the Notification dated 30.03.2002 issued by the Government of Karnataka in exercise of the powers conferred by Sub-Section (1) of Section 3 of the Act or not - Karnataka Tax on Entry of Goods Act, 1979 - Circular of the Commissioner of Commercial Taxes dated 10.02.2006. HELD THAT - Whether the unmanufactured tobacco involved herein, comes within the ambit of Section 2(A)(1), requires to be examined by the Appellate Authority constituted under the provisions of the Act and not under the writ jurisdiction. The statute prescribes the machinery i.e., hierarchy of authorities to examine such issues, circumventing the said provisions, under the guise of challenging the Circular of the Commissioner dated 10.02.2016, which has no relevancy to the subject matter, the petitioner has invoked writ jurisdiction which cannot be entertained. The petitioner has to exhaust the alternative and efficacious statutory remedy available under the Act. The writ petition stands disposed of with liberty to the petitioner to avail the statutory remedy available under the Act. If such an appeal is filed within a period of two weeks from the date of receipt of certified copy of the order, the Appellate Authority shall consider the same on merits without objecting to the period of limitation.

Summary

Issues:
Challenge to circular dated 10.02.2016 under Karnataka Tax on Entry of Goods Act, 1979 regarding tax liability on unmanufactured tobacco products.

Analysis:
The petitioner, a public limited company, challenged a circular dated 10.02.2016 issued by the Commissioner of Commercial Taxes in Karnataka, along with the assessment order and demand notice for the assessment year 2016-17 under the Karnataka Tax on Entry of Goods Act, 1979. The petitioner contended that unmanufactured tobacco should not be taxed as it falls under Entry 2 of Schedule II of the Act as 'Agricultural produce'. The Assessing Authority's interpretation that unmanufactured tobacco used in manufacturing cigarettes is liable to tax under a specific notification was disputed. The petitioner sought the court's intervention, arguing that the circular was incorrectly applied in the assessment order, making it unlawful.

The respondents, represented by the Additional Government Advocate, argued that unmanufactured tobacco used for manufacturing cigarettes falls under a specific entry of the notification, not as 'Agricultural produce'. They contended that the classification of goods is a factual matter not suitable for writ jurisdiction and should be decided by the Appellate Authority. The respondents referred to a previous judgment to support their argument.

The court analyzed the submissions and the circular in question, which dealt with a different issue related to beer manufacturing inputs. The court noted that the circular's reference to a previous judgment did not render it invalid, as the Commissioner did not make any decision on unmanufactured tobacco's tax liability. The court emphasized that the dispute centered on the classification and tax levy on unmanufactured tobacco under the Act. It highlighted the statutory provisions governing tax levy on goods entering a local area and the specific notification relevant to the case.

The court pointed out that the determination of whether unmanufactured tobacco qualifies as 'Agricultural produce' or falls under a specific entry of the notification required factual assessment by the Appellate Authority, not the writ jurisdiction. It emphasized the statutory remedy available to the petitioner to challenge such determinations. The court disposed of the writ petition, granting the petitioner the liberty to appeal to the Appellate Authority within two weeks. It directed the Appellate Authority to expedite the decision-making process and instructed to keep the recovery notice on hold during the appeal period.