TaxTMI 
TaxTMI 
2016 (5) TMI 666
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....'C' Forms obtained from the dealers in inter-State sales. The assessee had admitted the liability of tax at 2 per cent on the sale of SF DOC in the course of inter-State trade and commerce. The Deputy Commissioner of Commercial Taxes (Assessment) Chitradurga, the assessing authority, had passed an order of assessment under Section 9(2) of the Central Sales Tax Act, 1956 (for brevity, 'the CST Act') on 29th January, 2005, whereby it had expressed the view that a sum of Rs. 4,75,68,764/- was subjected to tax at 2 per cent. The assessing officer had granted the benefit on production of 'C' Form in terms of the Notification No.FD 119 CSL 2002 (2) dated 31st May, 2002. 5. After the order of assessment was passed, the succeeding assessing officer formed an opinion that there was an escapement of tax due to the reason that the inter-State sales of SF DOC was actually liable to tax at 4 per cent and not at 2 per cent, which had been erroneously adopted by the earlier assessing authority. Following the principles of natural justice, he levied the tax at 4 per cent on the inter-State sales of SF DOC. 6. The aforesaid order was called in question in an appeal before ....
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....5.2002 is liable to be held unsustainable and set aside. .... Consequential to the decision taken by us as above, the appellate order of the learned FAA is liable for modification accordingly. As regards the reassessment order set aside by the learned FAA on the basis of lay that reassessment is not permissible by change of pinion, which is supported by the several case laws cited in the appellate order itself, it need to be placed on record that Hon'ble Supreme Court of India has reiterated the said legal position that reopening of an assessment by change of opinion is not permissible in the recent judgment rendered in the case of M/s Binani Industries Ltd. Vs. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore and others (2007) 6 VST 783." 8. On the aforesaid analysis, the tribunal issued the following directions: "(i) Reassessment order passed by the DCCT (Transition), Chitradurga under CST Act, 1956 for the year 2002-03 in respect of rate of CST levied at 4% on the turnover of Rs. 4,75,68,764 relating to inter-State sales of sunflower de-oiled cake covered by C Forms is modified to 2% allowing the benefit of reduction in the rate of CST to 2% granted in ....
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....he Court cannot read into the notification what is not there. The notification is clear and unambiguous. Any attempt to read it otherwise is not only uncalled for but would amount to redrafting the notification." Being of this view, it answered the two questions that were framed by it in favour of the Revenue and against the Assessee. The said judgment and order is the subject matter of challenge in this appeal by special leave. 11. We have heard Shri Dhruv Mehta, learned senior counsel along with Ms. Anupama, learned counsel for the appellant and Shri Basava Prabhu S. Patil, learned senior counsel along with Shri V.N. Raghupathy, learned counsel for the State. 12. First, we shall take up the issue pertaining to Section 12-A of the KST Act. Section 12-A(1) which is relevant for the present purpose is extracted below: "12-A. Assessment of escaped turnover-(1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer in respect of any period has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable under this Act or any deductions or exemptions have been wro....
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....ords "reason to believe" have to be expansively understood to import a meaning to the provision, for when the assessment has taken place at a rate lower than the rate at which the turnover of a dealer is assessable, there can be reopening of assessment. 16. First, we shall proceed to consider the acceptability of the opinion expressed by the High Court. The Government of Karnataka in exercise of its powers conferred by Section 8 (5) of the CST Act, issued Notification No.119 FD 119 CSL 2002(2) dated 31.05.2002 granting reduction in the rate of central sales tax payable on inter-State sales of goods specified in Serial Nos.1 to 11 of the notification, subject to the condition that the Dealer produces declarations in Forms 'C' obtained from the registered Dealers/Government to whom the goods are sold. Be it noted oil cake is one of the goods specified in serial No. 6 of the notification. Submission of Mr. Mehta, learned senior counsel is that the High Court has clearly erred in law by distinguishing the facts and by opining that the judgment in the case of M/s Habeeb Protiens (supra) is not a decision in issue and an obiter. In the case of M/s Sterling Foods (supra), the que....
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....etain their original character and identity as shrimps, prawns and lobsters and do not become a new distinct commodity and are as much 'shrimps, prawns and lobsters', as raw shrimps, prawns and lobsters, sub-section (3) of section 5 of the Central Sales Tax Act would be attracted and if with a view to fulfilling the existing contracts for export, the assessee purchases raw shrimps, prawns and lobsters and processes and freezes them, such purchases of raw shrimps, prawns and lobsters would be deemed to be in course of export so as to be exempt from liability to State Sales Tax." 17. Relying on the said passage, it is contended by Mr. Mehta that when identity of the goods on the basis of commercial parlance is similar, the High Court would have been well advised to follow the principles set out in the aforesaid decision and should not have been guided by the concept of enumeration in the Notification. In essence, the submission is that there is no distinction between the oil cake and the de-oiled cake and both should be perceived as one in commercial parlance. Thus, the emphasis is on the commercial parlance test. To bolster the said stand, reliance has been placed on M/s H....
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....ale of goods specified below, made in the course of inter-State trade or commerce, to a registered dealer or the Government shall be calculated at the rate of two per cent subject to production of declaration in Form 'C' or certificate in Form 'D' duly filed and signed by the registered dealer or the Government to whom the said goods are sold:- 1. Cotton Yarn 2. Bicycles 3. Chemical fertilizers and chemical fertilizer mixtures 4. Edible oil-refined and non-refined 5. Khandasari Sugar 6. Liquid Glucose, Dextrine, Maixe Starch, gluten, grits, maize, husk, oil cake, corn steep liquor, dextrose, corn oil, maixe hydrol and maize germs." 19. From the said Notification, it is evident that the competent authority while exercising power under sub-section (5) of Section 8 of the CST Act, has kept the reduction of tax qua de-oiled cake from the purview of Notification and has only provided oil cake to be taxed at the reduced rate of tax. In view of the fact that the goods have distinct and different identity which also get recognition from the Notification, we are obliged to hold that the High Court has correctly distinguished the authority in M/s Sterling ....