NAVIN CHERIAN Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The petitioner has approached this Court aggrieved by Exts.P10 and P11 assessment orders passed against the petitioner under the Kerala Value Added Tax Act (hereinafter referred to as the KVAT Act) for the assessment years 2012-2013 and 2013-2014 respectively. The petitioner, who is an assessee on the rolls of the 1 st respondent carries on crushing operations in his unit where he uses three crushers namely, one secondary crusher of size-II, one secondary crusher of size-III and a primary crusher. The petitioner opted to pay tax on compounded basis in terms of Section 8 (b) of the KVAT Act, 2003 and paid tax as applicable based on the jaw size of the machines that were used in his premises. It is seen that the classification of the machines as primary and secondary, and further, as secondary (size II and size III) were based on the respective jaw sizes of the machine as detailed in Section 8 (b) of the KVAT Act. It would appear that the respondents issued a preassessment notice to the petitioner for the aforementioned assessment years proposing to reopen the assessment, on the ground that, based on material received from the mining and Geology Department, which indicated that a secondary crusher operated using a motor with a power greater than 30 HP would normally fall under size III and not size II, the declaration submitted by the petitioner was erroneous, and consequently, one of the secondary machines, declared as size II, would have to be treated as size III for the purposes of assessment. Exts.P10 and P11 assessment orders were accordingly passed reclassifying the particular machine, that was classified by the petitioner as size II, as size III, and demanding a differential tax from the petitioner on the said basis.

(2.) I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

(3.) The learned Government Pleader would submit, based on the counter affidavit filed on behalf of the 1 st respondent, that the demand of differential tax was based entirely on the information received from the Mining and Geology Department, which clearly suggested that any crusher machine operating with a Horse Power of more than 30 HP would automatically fall for classification under size III and not size II as contended by the petitioner. On a perusal of the relevant statutory provisions, however, I find that, as per the statutory scheme of payment of compounded tax under Section 8 (f), the tax payable is based on the production capacity of the machine, which in turn is determined by the jaw size of the crushing machine concerned.