DY COMMR OF SALES TAX Vs. ABOOBACKER

JUDGEMENT

(1.) THE Revenue is the petitioner in this batch of three cases. An identical question arises for consideration in all the three cases. THE same assessee is the respondent in T. R. C. Nos. 120 and 140 of 1992. THE respondent in T. R. C. No. 147 of 1992 is a different assessee. THE Sales Tax Appellate Tribunal, Ernakulam passed a common order in T. A. Nos. 575, 576 and 934 of 1990 dated 30-7-1990. T. R. C. No. 120 of 1992 is filed against T. A No. 575 of 1990. T. R. C. No. 140 of 1992 is filed against T. A. No. 576 of 1990 and T. R. C. No. 147 of 1992 is filed against T. A. No. 934 of 1990. T. R. C. No. 120 of 1992 relates to the assessment year 1986-87. T. R. C. Nos. 140 and 147 of 1992 relate to the assessment year 1987-88.

(2.) THE assessees respondents are engaged in the business of purchasing empty cassettes, recording songs, etc. and selling the recorded cassettes. THEy claimed that the sale of recorded cassettes is a second sale and so, non taxable. THE claim was disallowed by the assessing authority. THE first appellate authority upheld the said finding. THE Appellate Tribunal held that empty cassettes and recorded cassettes are not commercially distinct articles and the exemption claimed by the assessees on the sales turnover of recorded cassettes, which were originally purchased from local registered dealers within the State as empty cassettes, is allowable. THE assessing authority was directed to grant the exemption claimed by the assessees for the year 1987-88 for the period after 1-7-1987. For the period upto 1-7-1987, the Appellate Tribunal held that recorded cassettes will not fall within the purview of Entry 155 of the first Schedule to the Kerala General Sales Tax Act and they are exigible to tax as unclassified item upto 30-6-1987. This was so held in view of the decision of this Court in Tharangini Records v. State of Kerala (1990 (2) KLT 400 = 81 STC 284), since the recorded cassettes was held to be an unclassified item, it was held that it could be assessed only at the general rate of tax from 1-4-1987 to 30-6-1987 (1986-87 and for a portion of 1987-88 ). THE Revenue has filed revisions against the said common order of the Tribunal dated 30-7-1991.

(3.) THE common question arises in T. R. G. Nos. 140 and 147 of 1992, for the latter three quarters of the assessment year 1987-88. At the relevant time, Entry 191 of the First Schedule to the Kerala General Sales Tax Act stood as follows: Table:#1 THE assessee purchased empty cassettes, recorded songs and sold the cassettes. On a plain reading of Entry 191 of the First Schedule to the Kerala General Sales Tax Act, it is seen that the plain or empty cassettes are taxable only at the point of first sale. Similarly, recorded cassettes are also taxable only at the point of first sale. Whether the cassettes are empty or recorded is of no consequence. Only the first sale of the cassettes is taxable under Entry 191 of the First Schedule to the Act. Empty as well as recorded cassettes were treated on par. THEy were treated as same goods. Admittedly, the empty cassettes purchased by the assessee is the first sale. Sale of recorded cassettes is the second sale. It is entitled to exemption. In other words, the sale of recorded cassettes by the assessee is not taxable under Entry 191 of the First Schedule to the Act. We accordingly uphold the conclusion of the Tribunal.