PADINJAREKARA AGENCIES LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a public limited company. It is engaged in the business of processing and sale of centrifuged latex. It is stated that normal latex, collected from rubber trees, is purchased by the company and the same is ammoniated, preserved and later centrifuged with the aid of chemicals. THE finished product so rendered is used for the manufacture of foam rubber and other industrial products. THE petitioner's case is that normal raw latex taken from trees is not marketable as such, as it gets easily solidified. It has to be processed or converted either into sheets or into centrifuged latex. It is so done by a manufacturing process.

(2.) FOR the year 1982-83, the petitioner, as assessee under the Kerala General Sales Tax Act, 1963, purchased empty drums from Srinath Corporation, Cochin and Cominco Binani Zinc Ltd. , Binanipuram, by issuing form 18 declarations. It was on the basis that the drums were for marketing the company's finished product. On that basis, section 5 (7) of the Kerala General Sales Tax Act will apply. Sales tax could be charged only at the concessional rates on the purchase of empty drums by the petitioner-company. The petitioner had used the drums so purchased only for the marketing of the centrifuged latex processed and manufactured by it as its finished product. The second respondent - Assistant Commissioner (Assessment), Sales Tax Special Circle, Kottayam - by exhibit P4 dated July 9, 1984, informed the petitioner that form No. 18 declarations should not be used for the purchase of empty drums used for marketing centrifuged latex. This was followed up by exhibit P6 notice dated July 16, 1984 directing the petitioner to surrender the unused forms No. 18. The second respondent took the view that no manufacturing process takes place when centrifuged latex is made, but there is only a preservation process that is carried on. The petitioner had explained its position by exhibit P3 dated July 4, 1984 and exhibit P5 dated July 11, 1984. Even so, by exhibit P7 dated February 14, 1985, the second respondent levied a penalty of Rs. 1,18,558 on the petitioner under section 45a of the Kerala General Sales Tax Act holding that the petitioner has misused form No. 18 declarations which is an offence under section 45a of the Act. The petitioner filed a revision from exhibit P7 order before the third respondent - Deputy Commissioner of Sales Tax, Kottayam. By exhibit P9 dated March 22, 1985, the third respondent held that the revision has not been made in form No. 31a and so not entertainable. The petitioner filed a further revision from exhibit P9 before the Board of Revenue on June 20, 1985. The petitioner says that the said revision may not be maintainable, though it is still pending (para 13 of the original petition ). In the meanwhile, recovery proceedings were taken in pursuance to exhibit P7 order dated February 14, 1985 levying penalty, evidenced by exhibit P10 dated August 3, 1985 and exhibit P11. At this juncture, the petitioner filed the above original petition and exhibits P4 and P6 notices as also exhibit P7 - Order levying penalty - and exhibit P9 - revisional order confirming the same. The petitioner has also prayed for quashing exhibits P10 and P11 recovery proceedings.

(3.) THE learned Government Pleader raised a preliminary objection that the original petition is not maintainable, since on its own showing the petitioner has availed of the alternate remedy provided by the statute against exhibit P7 and the same is pending. It was argued that in view of the decision in Mcdowell & Co. Ltd. v. Assistant Commissioner of Sales Tax [1986] 62 STC 164 (Ker); 1985 KLT 428, the original petition is not sustainable. Counsel for the petitioner would submit that the penalty has been levied without proper advertence to essential factors and the nature and impact of the penalty proceedings were completely ignored in levying penalty as per exhibit P7. Counsel for the petitioner Mr. Warriyar submitted that in exhibit P7 the matter has not been considered in accordance with law. What is more, the revision filed has been thrown out on a flimsy ground by exhibit P9. THE matter has not been considered on the merits. THE alternate remedy is not efficacious. So, this Court should adjudicate the original petition on the merits.