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TMI Blog2015 (3) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of paying tax in accordance with the provisions of the said sections, pay tax at the following rates, namely:-- (i) for each crushing machine of size note exceeding 30.48 cm x 22.86 cm = ` 40,000 per annum;] (ii) for the each crushing machine of size exceeding 30.48 cm x 22.86 cm but not exceeding 40.64 cm and 25.40 cm = [` 1,60,000 per annum] (iii) for the each crushing machine of size exceeding 40.64 cm x 25.40 cm = [` 3,20,000 per annum] (iv) for each cone crusher [` 18,00,000 per annum]; Provided that in the case of dealers, who opted to pay compounded tax under this clause, no separate assessment shall be made in respect of [Manufactured sand] produced by them.] [Provided further that notwithstanding anything contained in this clause, dealers with a single crushing machine of size not exceeding 30.48 cm x 22.86 cm shall pay rupees [thirty thousand] only per annum and those with a single crushing machine of size above 30.48 cm x 22.86 cm but not exceeding 40.64 cm x 25.40 cm shall pay rupees [one lakh twenty thousand] only per annum, as tax under this clause.] [Explanation:-For the purpose of this clause, primary crusher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced during the course of manufacture of the granite metal could not be separately assessed. The mere fact that the petitioners had installed another machine in their unit, the operation of which also resulted in production of M-sand, was of no significance because the obligation to pay tax, as per the scheme of S. 8(b), was only in respect of the specified machines and not all machines used in the unit. * An identical issue had arisen in connection with the payment of tax at compounded rates under the erstwhile provision under the KGST Act. A division bench of this Court had then found that so long as the dealers had discharged their tax liability on the specified machines, there could not be any separate assessment in respect of a bi-product that was produced in the unit that was engaged in the manufacture of granite metal. (See: State of Kerala v. Poabs Granites Pvt. Ltd. (MANU/KE/2898/2010MANU/KE/2898/2010 : 2011 (4) KHC 876). The said decision was followed subsequently, while deciding a similar issue under the K.V.A.T. Act (See: Judgment dated 29.7.2011 in O.T. Rev. No. 24/2009 - M/s. Poabs Granite Products Pvt. Ltd. v. State of Kerala). * The Authority for clarificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Abdul Jawad and Smt. R. Leela and Sri. Harishankar Menon on behalf of the petitioners, and the learned Special Government Pleader Sri. George Mecheril on behalf of the respondents, in all these cases. 7. The sole issue that arises for consideration in these Writ Petitions is whether, the petitioners, who are admittedly dealers engaged in the production of granite metal with the aid of mechanized crushing machines, are entitled to claim exemption from separate assessment, in respect of the M-sand produced by them using VSI/HSI machines, that have not been reckoned for the purposes of compounding under S. 8(b) of the K.V.A.T. Act? 8. The provisions of S. 8(b) of the K.V.A.T., as they stood during the relevant period, envisaged a payment of tax at compounded rates, as an alternative to the regular payment of tax under S. 6 of the Act, for dealers producing granite metal using the aid of mechanized crushing machines. The scheme of the compounding provision suggests that dealers could opt to pay a tax, that was computed as the sum total of the amounts chargeable on specified machines that were used by the dealer in the production of granite metal. For this purpose, the legislature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubbles: Larger the number of the machines used, larger the output of finished products. Higher number of secondary is required to produce larger quantity of smaller size aggregates like 6mm and minus 4.75 mm. 7. It is further submitted that any crushed metal below 5 mm produced from secondary crusher can be called as crusher sand. It has high elongation and flakiness. The fine dust below 150 micron is over 25%. Due to this reason it is not safe to use in concrete. Crusher sand can be used for masonry works and hollow/solid bricks. The crushing of the stones where concluded in the secondary or cone machines and the by-products is not saleable as granite metal. These are called the crusher sand. These crushed sand (unsuitable granite metal) of below 6 mm produced in the secondary crusher will undergo a process of washing to avoid little grits. By washing away the little grits of less than the size of below 150 microns is the fine product which is sold as M. sand (crusher sand). Vertical Shaft Impactor (VSI) or Horizontal Shaft Impactor (his) for exclusive production of manufactured sand. The granite aggregates of size of 6 mm (1/2 inch) to 40mm (1 1/2 inch) collected from the cru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finer sized granite metal or sand, was of no consequence. In my view, the legislative scheme envisaged the payment of compounded tax by reckoning only certain specified machines, from among the various machines that were used in the production of granite metal, and the VSI/HSI machine was not one of them. Resultantly, the demands made on the petitioners, in connection with a separate assessment of the M-sand or Manufactured sand obtained through the use of VSI/HSI machines, cannot be legally sustained. The notices and orders, impugned in these Writ Petitions, are consequently quashed. There is yet another aspect of the matter. S. 8(b) of the KVAT has been amended by the Finance Act, 2014 and, specific provisions, providing for payment of compounded tax on VSI/HSI machines of various sizes, have been introduced. The newly introduced amendments are substantive in nature and hence, in the absence of any express indication to the contrary, necessarily prospective in their operation. The said amendment, introduced with prospective effect, also suggests that, for the prior period, the legislature never intended to include VSI/HSI machines in the reckoning of compounded tax under S. 8(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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