2023 (7) TMI 385

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.....S. DINESH KUMAR J., These Revision Petitions by the assessee, directed against the common order dated May, 23 2022, in STAs No. 227 to 232/2021 for A.Ys [Assessment Year]. 2009-10, 2010-11, 2011-12 passed by Full Bench of KAT [Karnataka Appellate Tribunal], Bengaluru have been filed to consider following questions of law: 1. Whether the Impugned Order upholding the assessment orders passed under Section 5(4) of the KTEG Act in STA 232/2017 for F.Y. 2011-12 is in accordance with law? 2. Whether the Impugned Order has erroneously upheld the non-speaking Tribunal Order which confirmed the levy of tax against the Petitioner on Hops pellets and incorrect calculation of turnover of entry tax on maize flakes and confirmed ent....

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....nch of KAT. Hence, these petitions by assessee. 4. Shri. Prasad Paranjape, for the Assessee, praying to allow the petitions submitted that: • tax has been levied on the basis of the order of this Court in United Breweries and the facts of that case are not similar to assessee's case; • assessee is not carrying out any activity which is outside the scope and ambit of cleaning, grading, sorting or drying which are excluded under Section 2A(1) of the KTEG Act; • maize flakes and malted barley are already 'fit for consumption' even before subjected to any process. The aspect of goods being 'fit for consumption' was not under consideration in United Breweries; • assessee had already paid ....

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....on is, Revenue has imposed tax based on the decision in United Breweries. Assessee had paid applicable tax for A.Y. 2011-12 and decision in United Breweries was delivered Subsequently. Therefore, Revenue's claim is unsustainable because the period under consideration is prior to the date of judgment in United Breweries. 9. Undisputed facts of the case are, assessee purchases Maize Flakes, Malted Barley, Malt conversion and Malt extract and these products are used as raw materials in manufacture of beer. 10. The two main issues that arise in these petitions are: • Whether Maize Flakes, Malted Barley, Malt conversion and Malt extract are taxable under KTEG Act? • If taxable, whether the interest and penalty cou....

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....and the amount of penalty between the period from 03.03.2010 to 31.03.2011 i.e. prior to passing of the order dated 07.07.2012 and much prior to issuance of clarification by the Commissioner with regard to tax liability on 07.07.2014. Therefore, the provisions of Section 7(2) of the Act could not be invoked in the case of the assessee." (Emphasis Supplied) 15. In Jayce Trading Corporation, the assessee therein had paid taxes for period between 03.03.2010 and 31.03.2011 prior to the date on which the Commissioner had clarified the issue on 07.07.2014. In the case on hand, the basis to impose tax is the decision in United Breweries which has been rendered on 15.09.2015. Therefore, imposition of tax prior to the decision in United ....