2002 (12) TMI 593

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....ner, in view of exhibit P4 clarification issued by the Commissioner, based on which assessment is completed, there is no scope for filing appeal before another departmental officer, who is also subordinate to the Commissioner and who is bound by the clarification. The clarification in exhibit P4 issued under section 59A is directly on the point and the petitioner's submission is that since the appellate authority is not free to decide the appeal on merits independently, the original petition should be entertained against clarification as well as against assessment. 2. I heard learned counsel for the petitioner, the learned Government Pleader and I have also gone through exhibit P4 clarification. The petitioner is engaged in manufacture....

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..... 3. The item purchased is of course timber, which is covered by item 8 of the Fifth Schedule. Both timber and plywood come under Fifth Schedule as items 4 and 8. For easy reference the entries in the Fifth Schedule are quoted hereunder: Sl. No. Description of goods First point of levy Rate of tax (per cent) Second point of levy Rate of tax (per cent) Where there are no two points of sale in the State Rate of tax (per cent) (1) (2) (3) (4) (5) (6) (7) (8) 1. Foamed rubber sheets, cushions and pillows and other articles of foamed rubber. At the point of first sale in the State by a dealer who is liable to tax under section 5 to a registered dealer for sale 8 At the point of last sale in the State by a dealer who is liab....

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....tioner's eligibility to issue form 18 for availing concessional rate under section 5(3) is beyond dispute. The next question is whether the clarification of the Commissioner that section 5(1)(v)(a) which applies to the petitioner is correct. The clarification though issued on application by another dealer who is similarly placed as the petitioner squarely applies to the petitioner. Section 5(1)(v) is extracted hereunder for easy reference: "(v) in the case of goods specified in the Fifth Schedule at the rates and at the two points specified against such goods in the said Schedule: Provided that where there are no two points of sale in the State for any goods coming under the Fifth Schedule and the first sale is to a person othe....

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....es only to a case where the purchaser pays tax under column (4) of the Fifth Schedule to the Kerala General Sales Tax Act. The purchaser from whom tax is collected by the seller under column (4) is a registered dealer who purchases the item by declaring that the purchase is for resale in the State. This is done by the purchaser issuing declaration in terms of rule 32(13C) and the form prescribed is form 25A. Therefore, operation of section 5(1)(v)(a) is limited to cases where the purchasing dealer after declaring in form No. 25A furnished that the item purchased is for resale in the State fails to sell the goods again on payment of tax at 2 per cent. Admittedly, the petitioner has not issued form 25A and has not claimed the benefit of conce....