MRF LTD. Vs. STATE OF KERALA

JUDGEMENT

(1.) The appeal arises from an order issued under Sec. 94 of the Kerala Value Added Tax Act, 2003. The order passed in the application for clarification was upheld, but with certain observations regarding the consideration of the claim of the appellant, by the Assessing Authorities. The review is filed with a delay of 164 days. The State contests the application for condonation of delay and also the maintainability of the review, on the specific grounds raised, which, according to them do not satisfy the contours of a review.

(2.) Shri. Kuryan Thomas, learned counsel appearing for the review petitioner, would place the decision of the Hon'ble Supreme Court reported in 2019 71 GSTR 1 (SC) Superintending Engineer, Dehar Power House Circle Bhakra Beas Management Board (PW Slapper) v. Excise and Taxation Officer, before us to contend that the situation is similar in the instant case. It is also the contention that Commissioner of Customs and Central Excise v. Hongo India (P) Ltd 2009 (4) SCR 1197 was specifically referred to and distinguished. The facts being similar, the decision, later in point of time is applicable on all fours and there is sufficient power in this Court to condone the delay occasioned. The learned Special Government Pleader (Taxes), Shri. Mohammed Rafiq, on the other hand, opposes the said contention with specific reliance placed on Hongo India (P) Ltd (supra). It is the submission of the State that both the aforesaid decisions where by coordinate benches and in that circumstance, going by the Constitution Bench decision in National Insurance Company v. Pranay Sethi (2017) 16 SCC 680 the dicta in Hongo I ndia (P) Ltd (supra) would prevail.

(3.) On merits, Shri Kuryan Thomas argues that the claim of the appellant was under Sec. 5 (1) of the CST Act, 1956, as a direct export and not a claim under Sec. 5(3) which is of a last sale or purchase, preceding the sale or purchase occasioned in the export. Shri. Mohammed Rafiq, on the other hand points out that there is no discovery of new or important facts, which, after exercise of due diligence, could not have been produced by the applicant or was not within their knowledge, and in that circumstance, there is no question of the review being maintainable. It is pointed out that the attempt is for a rehearing of the matter which cannot be entertained under the jurisdiction conferred by Sec. 63 (8) of the KVAT Act. Reliance is also placed on Ajith Kumar Rath v. State of Orissa (1999) 9 SCC 596.