KIRLOSKAR BROTHERS LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) The scope of Notification S.R.O. No. 365/1993 giving retrospective effect to Notification S.R.O. No. 1401/1992 issued under S.10 of the Kerala General Sales Tax Act, 1963 (for short 'the Act') arises for consideration in this case. The assessee is the petitioner. The State is the respondent. The assessment year concerned is 1992-93.

(2.) The assessee is, inter alia, engaged in the sale of goods received by branch transfer from outside the State. In the assessment for the year 1992-93 the assessing authority levied turnover tax at 0.5 per cent on the turnover of goods received on branch transfer from outside the State under S.5(2A)(g) of the Act. This is, inter alia, challenged by the assessee in appeal before the Appellate Assistant Commissioner. The appeal was dismissed by upholding the order of the assessing authority on this question. The Tribunal, in further appeal filed by the assessee, considered the question whether the assessee is liable to pay turnover tax under S.5(2A)(g) of the Act on the turnover of goods received from outside the State on branch transfer. Relying on the Division Bench decision of this Court in Assistant Commissioner (Assessment), Sales Tax v. Associated Cement Companies Ltd. ( 1998 (108) STC 219 ) it was held that the assessee is not liable to pay turnover tax on the turnover of goods received from outside the State on branch transfer. It was further held, in the light of the decision of this Court in Apar Ltd. v. Assistant Commissioner & Anr. (2000 (8) KTR 363 (Ker.)) that the assessee is entitled to get refund of the tax paid for the period after 29th October, 1992.

(3.) The only question that arises for consideration in this case is as to whether the order of the Tribunal refusing to direct refund of the turnover tax paid for the period from 1st April, 1992 to 29th October, 1992 is legal and valid. This will depend on the interpretation of the expression "provided that the turnover tax, if any, paid shall not be refunded" occurring in S.R.O. No.365/93.