SALES TAX OFFICER Vs. P K NAVI

JUDGEMENT

(1.) This is an appeal preferred by the Sales Tax Officer, I Circle, Calicut against the judgment of a learned single Judge of this court allowing O. P. No. 5869 of 1976 filed by the respondent herein and quashing the notices Exts. P2, P4 and P5 issued by the appellant to the respondent. The parties will hereinafter be referred to on the basis of their ranking and array in the original petition, the respondent in the appeal being referred to as the writ petitioner.

(2.) The writ petitioner is a dealer in Calicut carrying on business in the sale of arms ammunition and general goods. For the assessment year 1974-75 the petitioner was assessed to sale tax on a total turnover of Rs. 1,49,045.81 as per the order of assessment evidenced by Ext. P1, dated 21-10-1975. The petitioner paid the entire tax due in the said order. On 13 12 1976 the petitioner was served with a notice Ext. P2 issued by the Sales tax Officer (appellant) stating that two items of general goods viz. sulphur and saltpetre were wrongly assessed at 4% instead of 15% and that hence it was proposed to revise the original assessment order. In making the assessment as per Ext. P1, the petitioner's turnover relating to sale of sulphur and saltpetre had been taxed as general goods under S.5(1)(ii) of the Kerala General Sales Tax Act hereinafter called the Act at the rate of 4 per cent at ail points of sale. What was proposed to be done under the notice Ext. P2 was to re assess the said turnover by applying the rate of 15 per cent on the basis that the goods in question fell within the scope of entry No 18 of the First Schedule to the Act which reads:

(3.) The learned single Judge upheld the petitioner's contention that sulphur and saltpetre will not fall within the scope of entry No. 18 of Schedule I because they cannot be regarded as "ammunitions" either in the popular sense of the said expression or in the commercial sense of that term. The objection taken by the respondent in the original petition that the petitioner was not entitled to invoke the extraordinary jurisdiction of this Court under Art.226 of the Constitution without exhausting the statutory remedies available to him was overruled by the learned single Judge by pointing out that in the instant case no useful purpose would have been served by the petitioner by pursuing his objections before the Sales tax Officer or even before the first appellate officer since the State Government had issued clear instructions to the department that sulphur and saltpetre are liable to be subjected to a levy of sale tax under entry No 18 of Schedule I.