DEPUTY COMMISSIONER OF SALES TAX LAW BOARD OF REVENUE TAXES ERNAKULAM Vs. BURMAH SHELL OIL STORAGE AND DISTRIBUTING COMPANY LIMITED

JUDGEMENT

(1.) THE State of Kerala represented by the Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam, is the revision petitioner in these two connected revision petitions filed against the common order dated 28th February, 1979, passed by the Kerala Sales Tax Appellate Tribunal, Trivandrum, dismissing Tribunal Appeals Nos. 959 and 960 of 1977 filed before it by the State.

(2.) THE assessee is M/s. Burmah Shell Oil Storage and Distributing Company Ltd. , and the second appeals disposed of by the Tribunal arose out of the assessments to sales tax under the Kerala General Sales Tax Act, 1963 (hereinafter called the Act), made against the assessee for the assessment years 1974-75 and 1975-76. Two questions were raised before the Tribunal by the State in these second appeals. THE first question was whether the excise duty paid to the Central excise department on petroleum products purchased by the assessee was liable to be included in the taxable turnover of the assessee for the two assessment years. THE second question was whether the assessee was entitled to the benefit of the concessional rate of tax at 1 per cent on the turnover relating to the sale of naphtha inasmuch as it has produced open declaration in the prescribed form from the purchasing dealers as prescribed under section 5 (3) of the Act.

(3.) AGGRIEVED by the assessments so made against it, the assessee filed appeals before the Deputy Commissioner (Appeals) of Agricultural Income-tax and Sales Tax, Ernakulam. The Deputy Commissioner upheld the contention of the assessee that the excise duty paid by it did not form part of the purchase price and hence could not be included in the taxable turnover, relying on the decision of the Supreme Court in Mcdowell & Co. Ltd. v. Commercial Tax Officer ([1977] 39 S. T. C. 151 (S. C. ). ). On the second point relating to the eligibility of the assessee to the benefit of the concessional rate of taxation in relation to the sale of naphtha the appellate authority accepted the contention of the assessee in view of the decision rendered by the Tribunal in T. A. Nos. 253 to 256 of 1976 dated 13th April, 1976, wherein in relation to the same assessee the Tribunal had decided the identical point in the assessee's favour. The department thereafter took the matter before the Tribunal contending that the Deputy Commissioner had erred in upholding the aforementioned contentions put forward by the assessee. These appeals were dismissed by the Tribunal.