9911796707
TMI Blog2014 (6) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... estion are that the assessee sells a product which is known in the market as "Fryums". The assessee disclosed the turnover; however, claims exemption insofar as classifying the same to be "Papads". Entry 36 of the 1st schedule relating to 'Papad'; obviously grants exemption from tax. The debate is insofar as the Assessing Officer by Ext.P7, sought to treat it as "food products like pickles and corn flakes as included in Entry 49 of the 3rd schedule; exigible @ 4%. And the instant proceedings proceeded on the assumption that the product would be exigible at the rate of 12.5% as specified in SRO.82 of 2006 under Entry 103; residuary entry. 3. The learned senior counsel placed reliance on Cement Marketing Co. of India Ltd. v. Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the enactment. 6. An incidental look, into the facts, would reveal that the petitioner had, under the Kerala Value Added Tax Act, 2003, filed a return showing the turnover of its product; however claiming exemption as aforesaid. The Assessing Officer by Ext.P7, issued a notice under Section 25 seeking to classify the produce "Fryums" under item No.49 exigible to tax @ 4%. A detailed reply is said to have been filed in Ext.P8; on which admittedly no action has been taken till date. An assessment under the KVAT Act being one in the nature of self assessment, no order as such need be passed unless the Assessing Officer intends to meddle with the self-assessment made, on the basis of classification or otherwise, as permitted by statute. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return filed cannot be condemned as a 'false' one which finding alone would invite imposition of penalty. What then, is the scope of a penalty proceeding, is this Courts concern, herein. In that case the assessee deducted the freight charges from the price shown in the invoice since the invoice showed the 'free on rail destination railway station' price. The amount of freight paid to the assessee, according to them, was not exigible to sales tax and hence was not included in the taxable turn over, in the returns filed. Despite the finding that freight formed part of the sale price, on facts, it was held that "imposition of penalty is penal in character and unless the filing of an inaccurate return is accompanied by a guil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for attracting penalty. 11. With respect to the efficacious alternate remedy, it is trite that this Court would not exercise the discretionary jurisdiction under Article 226 of the Constitution of India in cases where there are efficacious alternate remedies; the two well recognized exceptions being violation of principles of natural justice and a proceeding taken under a provision of law which is ultra vires. One another exception would be when the proceeding itself is an abuse of process of law State of H.P v. Gujarat Ambuja Cement Ltd. [STC (2005) 142, Pg.1 ]. In the present case, though there is no ground of violation of principles of natural justice, definitely, the Intelligence Officer has proceeded without jurisdiction and a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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