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TMI Blog2002 (12) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... iod in question the assessee had only F.L.13 licence and that does not mean as a star hotel. The question arises for consideration is as to whether the assessee could be assessed to tax treating as a bar attached hotel. 2.. The assessee obtained a license and paid licence fee as contemplated under section 5B of the Kerala General Sales Tax Act, 1963. According to the assessee, it is not a bar attached hotel or a star hotel and hence the cooked food manufactured and supplied by it is not assessable to tax, as it is exempted as per entry 12 of the Third Schedule to the Kerala General Sales Tax Act read with section 9 of the said Act. The assessee filed an annual return disclosing their total turnover and claiming exemption. The assessing officer accepted the return filed by the assessee and allowed the exemption claimed finding that there is no taxable turnover for the assessment years in question. Subsequently, the Deputy Commissioner of Commercial Taxes, Kottayam by his order dated October 23, 1999 suo motu revised the assessment for the years from 1993-94 to 1996-97 taking the view that beer is classified under entries 53 and 54 of the First Schedule to the Kerala General Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Nos.339, 340, 341 and 342 of 1999 held that the licence fee paid by the assessee under section 5B to cover liability for sale of cooked food and beverages accepted by the assessing officer is in strict compliance of the statutory provision. The Tribunal also found that the beer licence in favour of the assessee has no relevance so far as the liability to tax on cooked food and beverages under item 40 of the First Schedule is concerned. A bar licence (F.L.3) to sell very variety of liquor is a necessary pre-requisite to call a hotel "bar attached". Since the assessee had obtained F.L.3 licence only with effect from April 1, 1998 the assessee cannot be treated as a bar attached hotel prior to April 1, 1998. The Tribunal also found after going through the licence F.L.3 issued under the Foreign Liquor Rules, 1982 that the said licence alone provides for sale of every kind of foreign liquor which can be sold to residents in the hotels and to guests or to casual visitors eating in the hotel and that this is the only licence for sale of liquor in a hotel or restaurant. In the result, the appeals were allowed and the order of the Deputy Commissioner is set aside. Challenging the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from April 1, 1999 the bar attached hotel was given wider meaning to include a hotel which is licenced under the Foreign Liquor Rules to serve beer and wine under Serial No.60. As this explanation was added by an amendment by Act 23 of 1999 which was not expressly given any retrospective effect, we have to consider as to how the word "Bar attached Hotel" has to be understood as it stood prior to the explanation inserted by Act 23 of 1999. In the absence of any definition we have to understand the term as to what is the popular meaning and also as to how the term is understood having due regard to the provisions contained in the Abkari Act and Rules thereunder, under which licence issued for such purpose. 8. The Kerala Abkari Act and Rules provided for granting of licence for various purposes. What is relevant here is only the Foreign Liquor Rules. It is not disputed that the assessee was issued only F.L.13 licence under the Foreign Liquor Rules, 1982. Rule 13 of the Foreign Liquor Rules, 1982 provides for grant of licence. The F.L.13 licence shall be issued by the Excise Commissioner exclusively to the Kerala State Beverages (Manufacturing and Marketing) Corporation Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Their licence will be renewed till that date. Failure to upgrade the standard of those hotels would lead to cancellation of licence and forfeiture of rental paid by them. Licensees shall have no claim for compensation. (The applicant shall produce from the Abkari Workers' Welfare Fund Inspector a certificate of the effect that he has remitted before the date of application for the licence/ renewal of licence, the arrears of contributions, if any, payable up to 31st day of December of the preceding year). The question whether a hotel or restaurant conforms to the standard of Two Star Hotel shall be determined in accordance with the specifications for classification of Star Hotels issued by the Department of Tourism and in case of doubt or dispute, the decision of the Excise Commissioner shall be final. The cost of liquor shall be billed along with the cost of meals. The cost of liquor shall be shown separately in the bill and the duplicate copies thereof shall be retained for inspection by the Officers of the Excise Department." 10.. From the above it can be seen that the licence is issued to a hotel or restaurant in form No.3. Two Star Hotel has to satisfy the specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tars and bar attached hotels cater mainly to a wealthier section of the people who can afford to spend more......." (emphasis supplied). 12.. The Supreme Court also in Kerala Hotel Restaurant Association v. State of Kerala [1990] 77 STC 253 confirmed the view expressed by this Court in Hotel Elite's case [1988] 69 STC 119; Here italicised. (1987) 2 KLT 959. The Tribunal has also referred to the fact that in F.L.3 licence the heading of the licence itself is "hotel (restaurant) licence" and that the licence provides for sale of every kind of foreign liquor which can be sold to residents in the hotels and to guests or to casual visitors eating in the hotel and that this is the only licence for retail sale of liquor in a hotel or restaurant. The assessee in this case was issued F.L.3 licence with effect from April 1, 1998. On the basis of the afore-mentioned discussion, we have necessarily to hold that the assessee, who was issued only F.L.13 licence during the relevant period in question, cannot be classified as "Bar attached Hotel" and hence, the order of the Deputy Commissioner in revision taking a contrary view is not valid or justifiable. In the circumstances, we confirm th ..... 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