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TMI Blog2018 (4) TMI 1916X X X X Extracts X X X X X X X X Extracts X X X X ..... an edible oil falling under Entry 31 of the 3 Schedule to the KVAT Act, taxable at the rate of 5.5%. In fact, the Tribunal has discussed the issue but for the reason that the issue was not raised before the lower authorities, this Tribunal declined to decide the issue which was raised for the first time, It is submitted that the Tribunal being the last fact finding authority for the First Time new facts could also be brought to the notice of this Tribunal. In view of the appellants plea to declare the rate of tax on margarine at 5.5% to set right the mistake that happened with respect to rate of tax on Margarine at the hands of the authorities below which has not been done in the earlier order of the Tribunal, the same is hereby rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The appellant s case was re-assessed for the period 2007-08 and the authority by rejecting the classification made by the appellant held that Table margarine is taxable at the rate of 12.5%. Also, the Assessing authority refused to grant difference of input tax rebate of 8.5% arising due to the seller M/s. Pioneer Marketing having paid the tax at the rate of 12.5% levied by the authority at the time of re-assessing the seller s case. Aggrieved by the order passed by the Assessing Authority u/s 39(1) on 22.11.2010, the appellant preferred the appeal before the First Appellate Authority questioning the disallowance of difference of 8.5% input tax rebate at the hands of the appellant. The First Appellate Authority has dismissed the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Time. 5. There was specific argument advanced by the appellant s counsel before this Tribunal stating that the Hon ble High Court of Karnataka while dealing with the rate of tax applicable for the sale of Margarine has categorically held that Margarine is an edible oil falling under Entry 31 of the 3rd Schedule to the KVAT Act, taxable at the rate of 5.5%. In fact, the Tribunal has discussed the issue but for the reason that the issue was not raised before the lower authorities, this Tribunal for the first time could not decide the issue. It is submitted that the Tribunal being the last fact finding authority, for the first time new facts can also be brought to the notice of this Tribunal. The question of law can be raised for the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the records. 8. A perusal of the facts and grounds of appeal, the following point arise for our consideration; Point No. 1: Whether there is a mistake apparent from the records which requires rectification? Point No.2: What Order? 9. Our answer to the above points are as under. Point No.1 . In the affirmative Point No.2: As per the final order, for the following; REASONS 10. Point No.1: The Applicant has filed the Rectification Application stating that in the order dated 19.08.2016 in Appeal Nos. STA 902 to 913/2012 the appellant had classified the sale of Margarine a generic term as edible oil falling under Entry 31 of the 3rd Schedule to the KVAT Act. The appellant s case was re assessed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Margarine situated in the State of Gujarat. The Hon ble High Court of Karnataka by its order dated 22.03.2016 in the case of M/s. Pioneer Marketing vs. State of Karnataka in W.P No. 15894/2016 has categorically held that Margarine is edible oil falling under entry 31 of the 3rd Schedule to the KVAT Act taxable at the rate of 5.5%. This Tribunal was pleased to set aside the levy of penalty. The Tribunal has assigned the reason, that the rate of tax on Margarine was never an issue before the lower authorities and also in the appeal memorandum. Further the Tribunal was of opinion that issue which was not canvassed before the lower authorities cannot be gone into by the Tribunal for the First Time. 11. There was specific argument advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pioneer Marketing Case, for the relevant tax period. The matter is disposed of accordingly by answering point No.1 in the affirmative . 12. Point No.2 : In view of the above, we proceed to pass the following; ORDER 1. The Rectification Application in No. 2/2016 is allowed. Para 9 of Tribunal order in STA No. 902 to 913/2017 dated 19.08.20 16 is modified by holding that Margarine is taxable at 5.5.% as per the decision of Hon ble High Court of Karnataka in the Pioneer marketing case. 2. The Registrar of the Tribunal is directed to comply with Regulation 53(b) of Chapter-IX of Karnataka Appellate Tribunal Regulations 1979 by communicating this order to the persons mentioned therein. [Dictated to the Stenographer, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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