9911796707
TMI Blog2009 (7) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... entire sales of the petitioner are to a fertilizer company for marketing the product in combination with other fertilizers made by them. Therefore, on merits also the petitioner's claim is well-founded and we, therefore, hold that the product irrespective of the clarification, is assessable under entry 50 of the First Schedule to the KGST Act of the relevant year. - - - - - Dated:- 2-7-2009 - RAMACHANDRAN NAIR C.N. AND MOHANAN V.K. AND ABDUL REHIM C.K. , JJ. ORDER:- The order of the court was made by C.N. RAMACHANDRAN NAIR J. The petitioner is a manufacturer and seller of magnesium sulphate which is a chemical fertilizer. The whole supply by the petitioner was to FACT Ltd., a leading manufacturer of chemical fertilizers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore Chemicals and Manufacturing Co. [1999] 112 STC 191 upheld the judgment of this court. The petitioner's assessment for 1995-96 was taken up after the judgment of the Supreme Court and based on declaration by this court confirmed by the Supreme Court, the assessing officer rejected the returns filed and assessed the turnover of magnesium sulphate at 10 per cent which is the rate provided for chemicals including caustic soda, caustic potash, soda ash sodium sulphate, sodium silicate, sulphur, chemical components and mixtures not elsewhere classified in the First Schedule under entry 29. Since appeals at two levels were unsuccessful, the petitioner has filed revision before this court against the order of the Tribunal. The Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of this court that this court did not consider the validity of all the clarifications issued under section 59A, but considered the case of some of the parties who approached this court and declared section 59A as unconstitutional. All the clarifications were cancelled only as a consequential measure, i.e., on account of declaration of section 59A as unconstitutional. The court had no occasion to consider the case of large number of dealers who accepting the clarification issued by the Government and applicable to their products, collected and remitted tax accordingly and the assessing officers following the clarifications completed the assessments. In fact, section 22(1) authorises registered dealers to collect tax only to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, clarification issued even in favour of assessees are null and void. We are unable to uphold the view expressed by the Division Bench because the Government did not accept the judgment of the Division Bench, but challenged the same in appeal before the Supreme Court. Further, during pendency of the appeal and even thereafter, parties were allowed to enjoy the benefit of clarification by accepting collection of tax and returns filed by them and by making assessments in terms of the returns so filed. As noticed by the Division Bench in the reference order, the assessing officer and the Government by their conduct deprived the petitioner of their valuable right to collect tax at higher rate, if at all the same was payable. Even though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides for chemicals other than those specifically covered by the other entries. All chemical fertilizers are chemicals and all such items covered by the entry would have come in entry 29 but for their specific coverage under entry 50. Therefore, entry 29 does not visualise any chemical fertilizer to be covered therein. The petitioner has produced various literature from the Agricultural Department proving the nature of use of the item which is only application as a fertilizer, particularly to prevent yellowing of plants. Sales tax being a commodity tax is borne by the customer and a lower rate of tax to fertilizer and plant protection chemicals are provided only to help the farmers who are the only consumers of the same. Admittedly, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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