DY COMMISSIONER SALES TAX Vs. UMMUL KULSU

JUDGEMENT

(1.) Common question arises in these three tax revision cases. The question is whether glass bottles and phials come under Entry 111 of the First Schedule to The Kerala General Sales Tax Act and exigible to tax at 10% of the sales turnover or only at the general rate applicable to unclassified items.

(2.) Respondent in T.R.C. 113/90 and T.R.C. 114/90 is a dealer in aluminium goods, plastic goods, empty bottles etc. at a Corporation building at Kozhikode. For the years 1983-84 and 1984-85 he was assessed to sales tax. The assessing authority levied tax on the turnover of empty bottles and phials sold by the respondent at 10% treating the same as "glass ware" coming under item 111 of the First Schedule to K.G.S.T. Act. On appeal the Appellate Assistant Commissioner concurred with the assessing authority. The assessee preferred second appeal as T.A. 579 and 580 of 1988 before the Sales Tax Appellate Tribunal, Additional Bench, Kozhikode. As per a common order in those appeals the Tribunal held that empty bottles and phials are not items coming under Entry 111 of the First Schedule and that they are not glass ware. It was further held that the sales tax turnover of the said items is taxable only at the rate applicable to unclassified items, i.e. at the general rate provided under the K.G.S.T. Act. That order is assailed by the revenue in the tax revision cases 113/90 and 114/90.

(3.) Respondent in T.R.C. 40/91 is a dealer in empty bottles, corks etc. at Kozhikode. He was assessed to sales tax for the year 1985-86 on a taxable turnover of Rs. 4,78,930/-. The assessee questioned the rate of tax levied on the turnover of empty bottles in first appeal before the Additional Appellate Assistant Commissioner, Kozhikode. The order of the assessing authority was confirmed in appeal. The Sales Tax Appellate Tribunal on second appeal adopted their earlier decision in T.A. Nos. 579 and 580 of 1988 dated 12-7-1989 and held that empty glass bottles are not glass ware attracting higher rate of tax at 10%. The assessing authority was directed to modify the assessment levying tax on the turnover of empty glass bottles at 5%. The department has come up in revision.