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TMI Blog2020 (1) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... having followed its own decision in T.A.No.9/2012 - it cannot be said that the Appellate Tribunal has erroneously decided or failed to decide any question of law. The challenge on that ground therefore must fail. Sale of furnace oil, lubricant etc. as industrial raw material/component parts sold to industrial units for use in production - Use of goods for which concessional rate is claimed as raw material - HELD THAT:- In the absence of any provision which obliges the purchaser to give any information to the vendor as to the purpose for which the goods are being purchased, it would be for the Revenue to proceed against the purchaser in case they have a contention that the product purchased is not consumed for the production of the end material, but is only used as fuel - If the purchaser misrepresents or subsequently uses the raw material for some other purpose, this Court held that the legislative wrath would fall on the purchasing dealer and that appropriate action would therefore have to follow as against him. In the instant case as well, it is the specific case that the sale was made on the basis of the declaration furnished by the purchasing dealer. In the above view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and functioning of joint sector undertakings stipulates that, the distribution of equity ownership should be 26% by the Government, 25% by private enterprises and 49% by public and financial institutions. It is stated that BSES Kerala Power Ltd. is a company registered under the Companies Act, 1956 and is co-promoted by Reliance Energy Limited and Kerala State Industrial Development Corporation (KSIDC). The Reliance Energy Limited holds 86.32% of the share capital while the KSIDC holds 13.68%. It was therefore concluded that BSES Kerala Power Ltd. is not a company under the joint sector and that as such, the concessional rate of tax as provided under SRO No.1091/1999 is not available to the assessee. The assessment completed was therefore set aside and the matter was remitted back to the assessing authority to complete fresh assessment in accordance with the findings of the Deputy Commissioner (Appeals). 4. The assessee took up the matter in appeal before the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Ernakulam by filing T.A.No.34/2012. The appeal was with regard to the rejection of the claim for concessional rate of tax for tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Kerala in Essar Oil Ltd Vs. State of Kerala reported in 37 VST 192, they are eligible for concessional rate of tax on the basis of Form 18 declarations filed by them. It is contended that the assessing authority has rightly allowed the claim of the assessee. We find force in the contentions raised by the assessee. In Essar Oil Ltd. Vs. State of Kerala reported in 37 VST 192, the Honourable High Court of Kerala has held that the selling dealer is not obliged to ensure use of goods by the purchasing dealer. In the instant case, the assessee has filed valid Form 18 declarations and the assessing authority is bound to give concessional rate of tax. This Tribunal in T.A.No.60/2010 to 63/2010 dated 31st May 2013 has dealt with similar issues in respect of the same assessee and has allowed the claim of the assessee. Therefore, the order of the Deputy Commissioner under Section 35 of the KGST Act is not sustainable. We, therefore, set aside the order of the Deputy Commissioner in this case. 5. Learned Senior Government Pleader appearing for the Revenue would contend that in the absence of any finding that the purchaser, i.e., BSES Kerala Power Ltd., was a company in the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncessional rate. Relying on the decision of the Apex Court in CST v. Thomas Stephen Co. Ltd. [(1988) 2 SCC 264] it was held that fuel is not consumed for the production of other goods and that cashew shells used as fuel would not be a raw material. 8. The learned counsel for the respondent assessee, on the other hand, would contend that, the guidelines for formation and functioning of joint sector companies issued by the Government of India is completely inapplicable in the matter of deciding whether the purchaser is a joint sector undertaking for the purpose of SRO 1091/99 or not. It is submitted that it is an admitted fact that the shares of M/s.BSES Kerala Power Ltd. Is held jointly by the Reliance Energy Limited and the KSIDC, which is admittedly a public sector undertaking. It is stated that the proportion of the shares or the existence of Government share capital is not determinative of the status of a joint sector undertaking, for the purpose of claiming concessional rate of tax under SRO 1091/99 and that in view of the admitted fact situation, it cannot be denied that the BSES Kerala Power Limited is a joint sector undertaking. It is further contended that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions advanced. With regard to the finding that BSES Kerala Power Ltd. is a joint sector undertaking, the issue was decided in favour of the assessee by the Tribunal in respect of the assessment year 2005-'06. It was held by the Tribunal in T.A.No.9/2012, in respect of the said assessment year that, the assessee fulfilled the requirements of the notification, i.e., SRO 319/2005, which succeeded SRO No.1091/ 1999 and that as such, concessional rate of tax could not be denied to the assessee. The Revenue took up the matter in revision. S.T.Rev.No.1/2014 was dismissed by order dated 18.1.2017 stating that there is no ground warranting interference with the impugned order in revision. Though it appears from the order in S.T.Revision that it was on the concession made by the Senior Government Pleader that the revision was rejected, the rejection of the revision amounts to upholding of the order of the Tribunal. Therefore, the Tribunal was justified in having followed its own decision in T.A.No.9/2012. In the above circumstances, it cannot be said that the Appellate Tribunal has erroneously decided or failed to decide any question of law. The challenge on that ground therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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