DY COMMISSIONER Vs. EXCEL RUBBER INDUSTRIES

JUDGEMENT

(1.) REVISION, at the instance of the Revenue, arises out of an order passed by the Sales-Tax Appellate Tribunal, Additional Bench, Ernakulam in T. A. 893/90 dated. 12. 2. 1993. Following questions of law are raised for decision of this Court: i) Whether in the facts and circumstances of the case is the Tribunal right in finding that the assessee has sold same articles which he has purchased from his purchaser? ii) Is not cutting and sizing and also the covering by cloth result in a new article commercially different from what has been purchased by the assessee? iii) Is the finding and conclusion are arrived at by the tribunal justified in law?"

(2.) RESPONDENT is an assessee under the Kerala General sales Tax Apt, 1963. He is a dealer in form rubber mattress, pillows and cushions etc. While completing the assessment for the year 1986-87, assessing authority rejecting the return and accounts of the assessee and estimated sales turnover by adding 20% towards manufacturing expenses and gross profit to the purchase cost of goods sold by the assessees during the year. Assessing authority did not accept the claim for exemption put forward by the assessee on the turnover of form bed, cushions and pillows etc. , on the ground of second sale. Assessing authority took the view that beds etc. , sold by the assessee are different commodities from form rubber sheets and clothes separately purchased by it. First appellate authority dismissed the appeal filed by the assessee. But, on second appeal, Tribunal took the view that what is purchased by the assessee are articles of formed rubber and it is the very same thing which is being sold. Therefore, levy of tax is called for only at first point, which was satisfied at the point of purchase made by the assessee. Therefore, at the point of its sale, no levy of tax is called for. Direction was therefore, given to grant exemption for sales turnover of beds, cushions, pillows etc. sold out of tax suffered purchases made by the assessee.

(3.) LEARNED counsel for the assessee, on the other hand, would contend that the foamed rubber sheets purchased by the assessee and the beds sold by it are one and the same. Reliance was placed on the following decisions by the learned counsel: A. A. Sulaiman v. Dy. Commissioner of Sales tax (1997) 105 STC 324, Bangalore Wood Industries v. Asst Commissioner of commercial Taxes (Assessment), Hassan & Ann (1994) 92 STC 603, Namputhiris pickle Industries v. State of Kerala Ann (1994) 92 STC 1 and 'new Nagpur Copra industries v. The State of Maharashtra & anr. (1985) 60 STC 380.