DEPUTY COMMISSIONER OF SALES TAX LAW BOARD OF REVENUE TAXES ERNAKULAM Vs. CHAMPAKULAM VILLAGE SERVICE CO-OPERATIVE SOCIETY LTD

JUDGEMENT

(1.) THESE three tax revision cases have been filed by the State represented by the Deputy Commissioner of Sales Tax (Law) Ernakulam, against the common order passed by the Sales Tax Appellate Tribunal (hereinafter called the Tribunal) in three appeals filed by the some assessee in respect of assessments to sales tax made for the years 1973-74, 1974-75 and 1975-76.

(2.) THE assessee is a co-operative society - Champakulam Village Service Co-operative Society, Alleppey. During the relevant assessment years, the society, as part of its business, has been dealing in various varieties of fertilizers such as rock phosphate, ultrafos, dolomite, peramphos, azo and thomas phosphate. In the retuns filed by it for the three assessment years the assessee had not included the aforementioned varieties of fertilisers in the taxable turnover on the basis that the sales effected by the assessee in respect of these goods not being the first sales within the State were not taxable inasmuch as the goods fall within the description "chemical fertilizers including bone-meal" in item 54 of the First Schedule to the Kerala General Sales Tax Act (herein after called the Act ). THE assessing authority however brought to tax the turnover relating to the sales of the aforementioned varieties of fertilisers and finalised the assessments on that basis. THE appeals filed by the assessee before the Appellate Assistant Commissioner of Sales Tax, Alleppey, were dismissed by the said authority and the assessments were confirmed. THE assess thereupon filed second appeals before the Tribunal reiterating the contention that the disputed turnover related to "chemical fertilisers" covered by item 54 of the First Schedule to the Act and since, admittedly, the sales effected by the assessee were not the first sales of the goods in question within the State, they were not taxable. While dealing with the said contention, the Tribunal took the view that the question whether rock phosphate is a "chemical fertiliser" coming under item 54 of the First Schedule was concluded by the decision of this Court in State Trading Corporation of India Ltd. v. Sales Tax Officer ([1972] 30 S. T. C. 93; 1972 K. L. J. 741), and hence the claim for exemption put forward by the assessee had to be upheld. THE Tribunal went on to state that the other varieties of fertilisers dealt in by the assessee were only "similar items known under different names" and hence the assessee was entitled to exemption in respect of the sales of the different varieties of fertilisers effected by it. THE legality and correctness of the decision so rendered by the Tribunal are under challenge in these tax revision cases filed on behalf of the State.

(3.) THE Government Pleader is, in out opinion, right in his submission that the decision of this Court in State Trading Corporation of India Ltd. v. Sales Tax Officer ([1972] 30 S. T. C. 93; 1972 K. L. J. 741) cannot be regarded as an authority laying down that rock phosphate is a chemical fertiliser. THEre was no occasion for this Court in that case to consider the said question because no contention was put forward by the State that rock phosphate was not a chemical fertiliser. Hence this Court proceeded to decide the case on the assumption that rock phosphate was a chemical fertiliser which a premise admitted by both sides. THE Tribunal was, therefore, manifestly in error in thinking that this Court had laid down in the above decision that rock phosphate is a chemical fertiliser and that in view of the said precedent which was binding on it no independent consideration of the said question was called for at the hands of the Tribunal.