R NAGARAJAN AND CO Vs. STATE OF KERALA

JUDGEMENT

(1.) In these two revisions, the same assessee is the revision petitioner. He is a dealer in tin-sheets, tin-plates, etc. According to him, the turnover relating to the said goods can be assessed only under item 3(ii)(i) of the Second Schedule and taxable at 4 per cent to the Kerala General Sales Tax Act. The assessing authority was wrong in holding that the tin-sheet and tin-plates dealt with by the assessee will fall under item 116 of the First Schedule of the Kerala General Sales Tax Act and can be taxed at 8 per cent. This plea put forth by the assessee was not accepted by the Appellate Assistant Commissioner and also by the Appellate Tribunal. The appeals filed by the assessee were dismissed. The assessee has come up in revisions.

(2.) The learned counsel for the assessee contended that the Tribunal was in error in holding that the turnover of tin-plates and tin-sheets, etc. by the assessee, can be taxed at 8 percent under item 116 of the First Schedule of the Kerala General Sales Tax Act. It was contended that the Tribunal was in error in holding so. It was further contended that the Tribunal ignored the bills and other specimen cuttings of the s produced at the time of hearing. The complaint is that the Appellate Tribunal was wrong ia stating that no evidence was adduced by the assessee petitioner to show that the goods will come under item 3(ii)(i) of the Second Schedule. It was submitted that the Tribunal has decided the question erroneously and even without adverting to the evidence tendered by the assessee.

(3.) The question, as to whether the turnover relating to tin-sheets, tin-plates, etc., dealt with by the assessee, will fall under item 116 of the First Schedule and so taxable at 8 per cent or will fall under item 3(ii)(i) of the Second Schedule and so taxable only at 4 per cent, is a mixed question of fact and law. The Appellate Tribunal has, in its order dated 6-8-1985, stated that the revision petitioners have not adduced any documentary evidence to come to the conclusion that the items dealt with by the revision petitioners are goods coming under item 3(ii)(i) of the Second Schedule of the Kerala General Sales Tax Act and not goods coming under item 116 of the First Schedule. In this view, the Tribunal further held that there is no evidence before them, either documentary or otherwise, to take a different view than that taken by the first Appellate Authority and so the turnover relating to tin-sheets and tin-plates will fall under item 116 of the First Schedule of the Kerala General Sales Tax Act and is taxable at 8 per cent. It is not possible for us to say that on the basis of the findings of the Tribunal, the conclusion arrived at, is, in any way, erroneous. It was for the appellant to adduce proper evidence, whether oral or documentary, to substantiate the plea that the turnover relating to tin-sheets, tin-plates, etc. dealt with by it, will not fall under item 116 of the First Schedule, but will fall only under item 3(ii)(i) of the Second Schedule of the Kerala General Sales Tax Act. If, as stated by the Appellate Tribunal, no documentary evidence was adduced and there was no material to substantiate the plea, it is not possible to say that the decision of the Appellate Tribunal is, in any way, erroneous. We are of the view that no interference is called for in these two revisions.