TaxTMI 
TaxTMI 
1998 (11) TMI 526
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....75 of 1998, Civil Appeal No. 4155 T.L. Viswanatha Iyer, Senior Advocate (R.N. Keshwani and S. Prasad.Advocates, with him), for the respondents in C.A. No. 4112, etc. of 1994. Joseph Vellapally, M.L. Verma and Raju Ramachandran, senior Advocates (M.T. George, B.B. sawhney, Ms. Indira Sawhney, Roy Abraham, C.K. Sasi, Ms. Baby Krishnan, M.K.D. Namboodiri, Ramesh Babu, N. Sudhakaran, C.K. Sreekumar, S. Balakrishnan, V.J. Francis, P.N. Ramalingam, K.R. Nambiar and M.A. Firoz, Advocates, with them), for the respondents in other appeals. K.N. Bhatt, Additional Solicitor-General (R. Sasi Prabhu, G. Prakash and Ms. Bina Prakash, Advocate with him), for the appellants in all the appeals. -------------------------------------------------- The judgment of the Court was delivered by B.N. KIRPAL, J.-Leave granted. Delay condoned. In these appeals the appellants are aggrieved by the common judgment of the Kerala High Court which has held section 59A of the Kerala General Sales Tax Act, 1963 (for short, "the Act") as being invalid. 2.. Respondents in these appeals, manufacture and sell various commodities like copper sulphate, batte....
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....ntleman, Sub: Taxes-Sales tax rate of tax on Horlicks, etc. Ref: Your letter dated 11-12-1984 The case at issue has already been examined previously and Government in G.O. Rt. 314/84/TD dt. 23-4-1984 have clarified that Horlicks would come under entry 6 of the First Schedule to the Kerala General Sales Tax Act, 1963. Yours faithfully, Sd/- [Secretary (Taxes)]." 5.. It is in view of such decisions taken by the State Government in determining the entries under which different items would fall, in exercise of its power under section 59A of the Act, that the respondents in these appeals filed different writ petitions in the Kerala High Court challenging the constitutional validity of section 59A. The main contention of the dealers was that section 59A gave the Government arbitrary and unguided power in determining the rate of tax applicable to different items and, furthermore, the said power had in fact been exercised in an arbitrary manner. 6.. The High Court in the impugned judgment referred to an earlier Bench decision of that Court in Dadha Pharma Pvt. Ltd. v. State of Kerala [1991] 81 STC 254; (1990) 2 KLT 307. That was a case by way of revision before the H....
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....ve a reasonable opportunity to the dealer of being heard before finalising the assessment. In the event of the dealer being aggrieved by the assessment order so passed Chapter VII contains provisions for appeals and revisions. Appeal to the Appellate Assistant Commissioner is filed under section 34; section 36 gives the power to the Deputy Commissioner to revise an order on an application being made and power of revision is also given to the Board of Revenue under section 38 of the Act. Section 39 is a provision which provides for appeal to the Appellate Tribunals against certain orders. Section 40 enables an appeal to be filed to the High Court by any person objecting to an order affecting him which was passed by the Board of Revenue under section 37, while section 41 gives a person right to file a revision in the High Court from an order passed by the Tribunal under section 39 of the Act. It is apparent from reading of these provisions that questions like the rate of tax or the entry under which sale of particular goods are to be taxed can be raised and determined before various quasi-judicial and judicial authorities. There is a right of appeal and revision which is given to ....
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.... lis between the State and the dealer. 13.. We are unable to agree with the submission of Mr. Bhatt that the section furnishes a limitation subject to which the power can be exercised. The section does not contain any guidelines as to at what stage the power can be exercised and nor does the exercise of such a power make it amenable to the appellate or revisional provisions provided by the Act. It is no doubt true that in certain enactments of other States the Government has the power but such power is not unbridled. For example under section 49 of the Delhi Sales Tax Act, 1975, power has been given to the Commissioner of Sales Tax to determine certain disputed questions. The said section reads as under: "49. Determination of disputed questions-(1) If any question arises, otherwise than in proceedings before a court, or before the Commissioner has commenced assessment or reassessment or a dealer under section 23 or section 24, whether for the purposes of this Act,- (a) any person, society, club or association or any firm or any branch or department of any firm is a dealer; or (b) any particular thing done to any goods amounts to or results in the manufacture of g....