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TMI Blog2000 (1) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bombay (both made in Japan with trademark Noritsu ). In order to bring these machineries from Bombay to Kerala by way of an inter-State movement with concessional rate of tax, the appellant made an application before the first respondent to amend the CST registration certificate in its name to include the aforesaid items as well in the certificate. The first respondent rejected the said request to amend the CST registration certificate stating that processing of colour photographs will come under works contract and hence CST registration certificate cannot be amended including machineries and accessories by proceedings dated October 1, 1999. According to the appellant, the reason stated in the impugned order discloses non-application of the mind by the officer concerned to the relevant provisions under the CST Act and the Rules. Even assuming that the photo-processing in the appellant s lab amounts to works contract, still the action of the first respondent as evidenced by exhibit P3 is patently illegal and against the judicial pronouncements on the issue. A case identical to this, which arose for consideration before a Full Bench of the Orissa High Court, reported in Kaling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in this case is squarely covered by a ruling of Full Bench of the Orissa High Court. It is open to the petitioner to place the ruling before the appellate authority. The appellate authority shall consider the same while deciding the appeal. The appeal will be disposed of within a period of two months from the date of receipt of a copy of this judgment. 5.. The writ appeal was admitted by this Bench on November 24, 1999 and the respondents were directed to file a counter affidavit and, accordingly, the Assistant Commissioner (Law), Office of the Deputy Commissioner (Law), Ernakulam filed a counter-affidavit. It is contended that the appellant is entitled to the facility of using C forms for the purchase only if he satisfies the condition of section 8(3) of the CST Act. According to the respondents, the purchase of machinery and other instruments for executing the works forms part of the labour portion in the works contract and, therefore, the request for amendment of the registration certificate was rejected by the respondent. It is their contention that the Full Bench of the Orissa High Court in the decision reported in [1999] 115 STC 81 [Kalinga Builders (P) Ltd. v. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 19, section 19A, section 19B, section 26, section 29, section 29A, section 30 or section 30A may, within a period of thirty days from the date on which the order was served on him, appeal against such order to the Appellate Assistant Commissioner. A reading of the above section would show that no appeal is provided against an order like exhibit P3 rejecting an application to amend the CST registration certificate. No appeal is provided under the CST Act also. The reason given by the first respondent was that the amendment cannot be allowed as the processing of color photographs comes under works contract. 9.. Section 8 of the CST Act says that every dealer, who in the course of inter-State trade or commerce sells to a registered dealer other than the Government goods of the description referred to in sub-section (3) shall be liable to pay tax under the Act which shall be 4 per cent of the turnover. So, under section 8(1) of the CST Act, selling dealer of the appellant need pay only 4 per cent of its turnover if he sells to a registered dealer. Sub-section (3) describes the goods with reference to which C forms can be issued. These goods are the goods of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression tax on the sale or purchase of goods includes, inter alia, a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply or purchase of those goods by the person to whom such transfer, delivery or supply is made . It is, therefore, contended by the learned counsel for the appellant that this amendment enlarged the scope of legislative power of the State under entry 54 of List II and on the Parliament under entry 92A of List I. Thus, the expression tax on the sale or purchase of goods in entry 54 includes tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract. In view of the above constitutional amendment, the Kerala Legislature has introduced certain amendments in the KGST Act, 1963 as per the provisions contained in the Kerala Finance Act, 1984. Our attention was also drawn to Explanation (3A), which was introduced in the definition clause of the expression sale . Explanation (3A) [sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. In Larsen Toubro Limited v. Commercial Tax Officer [1992] 85 STC 422 (Mad.), D. Raju, J., in paragraph 11 of the judgment held as follows: If therefore under the local sales tax law of the appropriate State, as has been held by the Apex Court in Builders Association of India s case [1989] 73 STC 370, the States are entitled to levy sales tax on the price of goods and materials used in works contracts as if there was a sale of such goods and materials, the dealers like the petitioners become entitled to purchase materials for their use in the execution of the works contracts by the issue of the C forms, notwithstanding the Central Amendment Act No. 31 of 1958. In paragraph 12 of the said judgment, it is held that the petitioners therein are entitled to have themselves registered as dealers under section 7(2) and consequently are entitled to the supply of C forms for use in their purchase of goods in the course of inter-State sale or trade or commerce at the concessional rate. 15.. An identical situation, i.e., for amendment of CST registration certificate, came before the Full Bench of the Orissa High Court, comprising of S.N. Phukan, C.J., A. Pasayat and P.K. Tripa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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