Waves Electronics (P) Ltd. v State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944** **OT.REV NO. 65 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 19.11.2012 in TA(VAT) NoS.1562 & 1563 OF 2011 OF KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM** ## **REVISION PETITIONER/PETITIONER/ASSESSEE:** **WAVES ELECTRONICS (P) LTD. 155-B, ALAPPATT, TOC-H ROAD, VYTTILA, KOCHI-19. REPRESENTED BY ASSISTANT MANAGER(FINANCE) SRI. T.S. YESUDASAN.** **BY ADVS. SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.P.G.CHANDAPILLAI ABRAHAM SRI.SHARAD JOSEPH KODANTHARA** ## **RESPONDENT/REVENUE/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R2 THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, IMPLEADED ERNAKULAM KOCHI-682015** **(R2 IS IMPLEADED AS PER ORDER DATED 5.10.2016 IN IA 2346 OF 2016)** **BY ADV SPECIAL GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ** **THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 23.01.2023, ALONG WITH OT.Rev.12/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :2: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944** **OT.REV NO. 12 OF 2019** **AGAINST THE ORDER/JUDGMENT DATED 19.11.2012 in TA(VAT) NoS.1562 & 1563 OF 2011 OF KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM** ## **REVISION PETITIONER/PETITIONER/ASSESSEE:** **WAVES ELECTRONIES (P) LTD., 155-B, ALAPPATT, TOC-H ROAD, VYTTILA, KOCHI-19, REP. BY ASSISTANT MANAGER (FINANCE), SRI.T.S.YESUDASAN.** **BY ADVS. SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.P.G.CHANDAPILLAI ABRAHAM SRI.ALEXANDER JOSEPH MARKOS SRI.SHARAD JOSEPH KODANTHARA** ## **RESPONDENT/REVENUE/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, STATE GOODS AND SERVICES TAX DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** ## **BY ADV SPECIAL GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ** **THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 23.01.2023, ALONG WITH OT.Rev.65/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 ## **O R D E R** ## **A.K.Jayasankaran Nambiar, J.** These Revision Petitions pertain to the assessment years 20082009 and 2010-2011, and while there are several questions of law raised in the memorandum of revision petitions we re-framed the said questions to read as follows: “Re-Drafted Questions of Law raised for decision by the Hon'ble High Court. 1) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in law in holding that sales effected from bonded warehouse of the petitionercompany to the bonded warehouse of the Cochin Shipyard Ltd. does not qualify for exemption under Sl. No.57 of Schedule-I appended to the KVAT Act, 2003 ? 2) Whether on the facts and in the circumstances of the case and in the light of Section 53 of the SEZ Act read with Rule 5 (5)(a) of the SEZ Rules, the Appellate Tribunal is right in holding that the Appellant's sale of goods to Cochin :4: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 Shipyard Ltd. is not export sale under Section 5 (1) of the CST Act or a deemed export sale under Section 5(3) of the CST Act ? 3) Whether on the facts and in the circumstances of the case and in the light of G.O. No. (Rt.) 576/2003/ID dated 17.06.2003 and G.O. No.1154/2008/ID dated 06.10.2008, is the Appellate Tribunal right in holding that the Appellant is amenable to the provisions of KVAT Act ? 4) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is right in holding that the Circular No. C3.31297/07/CT dated 15.09.2007 is not applicable to the Petitioner ?” 2. When the matter was taken up for hearing, we noticed that the first question above has been decided against the assessee and in favour of the revenue by the decision of the Supreme Court in **Nirmal Kumar Parsan v. CCT [(2020 11 SCC 294]** where the Supreme Court has clarified that in situations where goods are imported into the country and taken outside the customs landing station/port for the purposes of storage in bonded warehouses situated within the territory of India, the importer concerned may claim exemption from the payment of import duties under the Customs Act, but the importer :5: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 cannot claim exemption from the levy of value added tax under the applicable State Legislation unless there are provisions thereunder specifically exempting taxable transactions in such goods from the levy of tax. Following the said decision, we answer the first question against the assessee and in favour of the revenue. 3. As regards question No.2 above, we find that the said question has to be answered against the assessee and in favour of the revenue in view of the decision of the Division Bench of this Court in **Lalitha Muralidharan v. Commissioner of Commercial Taxes [2017 (3) KLT SN 19 (C.No.26)]** that affirmed the decision of a learned Single Judge in **Lalitha Muralidharan v. Commissioner of Commercial Taxes [2016 (1) KLT SN 1 (C.No.1)]** . Although an SLP is stated to be pending before the Supreme Court against the said judgment, since there is no stay granted by the Supreme Court, we answer the question against the assessee and in favour of the revenue. 4. As regards question No.3 above, we find that the said question has also to be answered against the assesee and in favour of the revenue in view of the judgment of this Court in the petitioners own case as reported in Neutral citation **Government of Kerala & Others** :6: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 ## **v. Waves Electronics (P) Ltd & Another [2022/KER/33475]** . 5. As regards question No.4 above, we find that Circular No.C3.31297/07/CT dated 15.09.2007 referred to therein is one that deals with the exemption granted by the State Government to sales effected by units in a DTA to units situated inside an SEZ. On the facts of the instant case, where the sale in question is one that is effected from a unit in the SEZ to the Cochin Shipiyard Ltd, the said circular can have no application. Accordingly, we answer the 4[th] question also against the assessee and in favour of the revenue. In conclusion, the OT. Revisions are disposed by answering the questions referred to above against the assessees and in favour of the revenue. ## Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :7: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 ## **APPENDIX OF OT.REV 65/2013** ## **PETITIONER ANNEXURES** - **Annexure A TRUE COPY OF THE ASSESSMENT ORDERS FOR THE YEAR 008-09 DATED 25/02/2011 AND 2010-11(4/2011) DATED 14/06/2010.** - **Annexure B TRUE COPY OF THE REVISED GROUNDS OF APPEAL FOR THE YEARS 2008-09 AND 2010-11** - **Annexure C TRUE COPY OF THE COMMON APPELLATE ORDER NO. KVATA 2468/10 & 1402/11 DATED 10/10/2011 ISSUED BY THE DC (APPEALS) , KOTTAYAM.** - **Annexure D TRUE COPY OF THE GROUNDS OF APPEAL FOR THE YEAR 2008-09 AND 2010-11 FILED BEFORE THE KVAT TRIBUNAL, ERNAKULAM.** - **Annexure E TRUE COPY OF THE COMMON ORDER IN TA(VAT) NO. 1562/11 & 1563/ 11 DATED 13/05/2013 ISSUED BY THE HONOURABLE TRIBUNAL, ERNAKULAM.** - **Annexure F TRUE COPY OF THE REVIEW APPLICATIONS FOR THE YEARS 2008-09 & 2010-11 FILED ON 27/02/2013 BEFORE THE HONOURABLE TRIBUNAL.** - **Annexure G TRUE COPY OF THE ORDER NO. 1/13 & 2/13 DATED 13/05/2013 IN REVIEW PETITION ISSUED BY THE HONOURABLE TRIBUNAL.** **Annexure H TRUE COPY OF THE CLARIFICATION ORDER NO. C3.31297/07/CT DATED 15/09/2007 ISSUED BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM.** **Annexure I TRUE COPY OF THE STATEMENT OF TURNOVER FOR THE YEARS 2008-09 & 2010-11.** :8: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 - **Annexure J TRUE COPY OF THE CERTIFICATE ISSUED THE CUSTOMS AUTHORITY** - **ANNEXURE K TRUE COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS IN ITS MEETING HELD ON 16.02.2013 OF THE PETITIONER COMPANY** - **ANNEXURE L TRUE COPY OF THE BANK GUARANTEE NO.34/2011 DATED 06.07.2011 RENEWED UP TO 03.12.2015** - **ANNEXURE M TRUE COPY OF THE LETTER FROM INDIAN BANK SHANMUGAM ROAD, ERNAKULAM DATED 30.12.2014** - **ANNEXURE N TRUE COPY OF THE REQUEST FOR RETURN OF BANK GUARANTEE DATED 18.04.2015** - **ANNEXURE O TRUE COPY OF THE COMMON ORDER IN TA(VAT).NOS.1562/2011 AND 1563/2011 DATED 19.11.2012 OF THE KVAT APPELLATE TRIBUNAL, ERNAKULAM.** - **ANNEXURE Q TRUE COPIES OF THE REGISTRATION CERTIFICATES UNDER KGST, KVAT AND CST** - **ANNEXURE R TRUE COPY OF THE ORDER NO.9/011/2002 IL:CSEZ/7451 DT.25.11.2002 ISSUED BY THE DEPUTY DEVELOPMENT COMMISSIONER, CSEZ, KAKKANAD** - **ANNEXURE S TRUE COPY OF THE SRO 151/2004 DT.13.2.2004** - **ANNEXURE T TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2004-2005 IN RESPECT OF THE PETITIONER COMPANY** :9: OT. Rev.No.65 -2013 & OT .Rev.No.12-2019 ## **APPENDIX OF OT.REV 12/2019** ## **PETITIONER ANNEXURES** **ANNEXURE A TRUE COPIES OF THE GO.576/2003 DATED 17.6.2003 AND GO.1154/2008 DATED 6.10.2008. ANNEXURE B TRUE COPY OF THE ASSESSMENT ORDER NO.32070272872/2010-11 (4/2010) DATED 14.6.2010.** **ANNEXURE C TRUE COPY OF THE COMMON APPELLATE ORDER KVATA NO.2468/2010 AND KVATA NO.1402/2011 DATED 10.10.2012.** - **ANNEXURE D TRUE COPY OF THE COMMON ORDER IN VAT T.A.NOS.1562/2011 AND VAT T.A.NO.1563/2011 DATED 19.11.2012 ISSUED BY THE HONOURABLE TRIBUNAL, ERNAKULAM.** **ANNEXURE E TRUE COPY OF THE GROUNDS OF APPEAL FOR THE YEAR 2010-11 FILED BEFORE THE KVAT TRIBUNAL, ERNAKULAM.** **ANNEXURE F TRUE COPY OF THE COMMON ORDER IN R.P.1/2013 AND 2/2013 DATED 13.5.2013.** **ANNEXURE G TRUE COPY OF THE STATEMENT OF TAXES FOR THE RELEVANT PERIOD.** **ANNEXURE H TRUE COPY OF THE CER TIFICATE ISSUED BY CUSTOMS AUTHORITIES.**