9911796707
TMI Blog2002 (12) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... , based on which assessment is completed, there is no scope for filing appeal before another departmental officer, who is also subordinate to the Commissioner and who is bound by the clarification. The clarification in exhibit P4 issued under section 59A is directly on the point and the petitioner's submission is that since the appellate authority is not free to decide the appeal on merits independently, the original petition should be entertained against clarification as well as against assessment. 2. I heard learned counsel for the petitioner, the learned Government Pleader and I have also gone through exhibit P4 clarification. The petitioner is engaged in manufacture of wooden furniture. The petitioner purchased timber from loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by item 8 of the Fifth Schedule. Both timber and plywood come under Fifth Schedule as items 4 and 8. For easy reference the entries in the Fifth Schedule are quoted hereunder: Sl. No. Description of goods First point of levy Rate of tax (per cent) Second point of levy Rate of tax (per cent) Where there are no two points of sale in the State Rate of tax (per cent) (1) (2) (3) (4) (5) (6) (7) (8) 1. Foamed rubber sheets, cushions and pillows and other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umn (8) of the Fifth Schedule which is 12 per cent. It is the settled position that section 5(3) applies to items coming under the Fifth Schedule also and therefore, any purchaser of industrial raw materials, packing materials, etc., falling under the Fifth Schedule also can avail the benefit of concessional rate under section 5(3) by issuing form 18. The petitioner has therefore issued form 18 and availed concessional rate of tax provided under section 5(3). In fact as regards form 18 issued, no dispute is raised by the assessing officer and the petitioner's eligibility to issue form 18 for availing concessional rate under section 5(3) is beyond dispute. The next question is whether the clarification of the Commissioner that section 5( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale within the State, to a registered dealer for sale then the dealer effecting the subsequent sale within the State shall pay tax at the rates shown in column (4) of the Fifth Schedule and where there are no two points of sale in the State for any goods coming under the Fifth Schedule and the subsequent sale is to a person other than a registered dealer, or to a registered dealer other than for sale the rate specified in column (8) of that Schedule shall apply to such sales; It is clear from clause (a) of last proviso to section 5(1)(v)(a) that it applies only to a case where the purchaser pays tax under column (4) of the Fifth Schedule to the Kerala General Sales Tax Act. The purchaser from whom tax is collected by the seller under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner's finding that section 5(1)(v)(a) applies to the purchasing dealer and is an independent charging section, is correct. However, his finding that the said section applies also to purchases covered by section 5(3) is incorrect, because rate of tax under the charging provision in the Fifth Schedule for sales covered by section 5(3) is the rate provided in column (8) of the Fifth Schedule and not column (4). In the circumstances, the clarification is declared wrong and the petitioner is not liable to pay tax under section 5(1)(v)(a) in respect of the purchase turnover of timber used for manufacture and purchased against form 18. The assessing officer is directed to modify exhibit P1 assessment deleting the demand under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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