ANNIE GEORGE, PROPRIETRIX Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondent The common questions arising in these connected TRCs are whether the tribunal was justified in confirming denial of compounding facility to the petitioner to remit tax under S.7(1)(b) of the KGST Act, the disallowance of second sale exemption claimed on granite chips and jelly and metals sold by petitioner and further, declining alternate claim of exemption under Entry 33 of IIIrd Schedule to the KGST Act, which among other items, provided exemption for "crushed metals produced otherwise than by mechanised crushing."

(2.) Before proceeding to examine the main question, we reject the petitioner's claim for exemption under the IIIrd Schedule because the petitioner was admittedly engaged in crushing stones by mechanical process which fact is self evident from her claim for compounding based on the machinery involved The main question raised is with regard to the disallowance of compounding facility to the petitioner for payment of tax under S.7(1)(b) of the Act. On going through the order of the tribunal, we find that the petitioner did not make the application in prescribed Form No.21 in terms of R.30(1) read with S.7(1)(b) of the Act In feet, the petitioner appears to have written some letters claiming compounding facility. When the Act and the Rules require application for compounding to be processed in a particular manner within a time frame, the dealer complying with the statutory formalities only is entitled to the benefit. In fact, if there was any provision to condone delay and if the petitioner has any grievance against the rejection of such application, the same can be contested. Admittedly, petitioner did not furnish Form No.21 on or before the first May of the relevant year for payment of tax at compounded rate. In fact, if the application was allowed, the Officer was bound to issue demand notice in Form No.22 for payment of tax along with monthly returns. Since the petitioner has no case that Form No.22 was issued by the Officer, her letter was not treated as an application for compounding and no follow up action was taken by petitioner. The payment of tax made by petitioner does not, therefore, amount to payment of compounding fee under S.7(1)(b). In these circumstances, we do not find any ground to interfere with the order of the tribunal confirming disallowance of petitioner's claim for compounding.

(3.) The last ground raised by petitioner is against disallowance of second sale exemption on the ground that granite rubbles out of which chips and jelly are produced by mechanical crushing have suffered tax. In order to claim second sale exemption, petitioner has to produce proof of tax sufferance on the same goods by producing bill or cash memorandum in terms of R.32(13) of the KGST Rules. The tribunal found that the petitioner has not satisfied the requirement of the Rules for granting exemption on second sales. We do not go into the question whether the second sale exemption itself is tenable because the item purchased is not the item sold by petitioner. Since there is no need to consider this question as exemption was declined by the tribunal for want of proof of payment of tax on purchases, we do not think it necessary to consider the issue. The TRCs are, therefore, devoid of any merit and they are dismissed. However, whatever amount the petitioner has remitted in the name of compounding fee, should be credited towards tax and balance only should be recovered with interest.