Carborandum Universal LTD vs. The Commissioner

Learned Senior Government Pleader Mr.Mohammed Rafiq, by inviting our attention to the tenor of Annexure-I, argues that the O.T.Appeal, at this juncture, is misconceived and Annexure-I does not in terms refer to Annexure II order. With a view to specifically understand the case of respondents, we have given time to the respondents to file statement to the extent indicated above.

The statement filed by the Senior Government Pleader is excerpted hereunder: " The above appeal has been filed under Section 62(1) of the Kerala Value Added Tax Act, 2003, challenging the Annexure-II clarification order bearing No.C3.5444/2016/CT dated 13.04.2016 passed by the Authority for Clarification, under Section 94 of the Kerala Value Added Tax Act. The appellant herein was not a party to the said proceedings. The cause of action as asserted by the appellant to challenge the clarification order is that the 2nd respondent assessing authority has passed the Annexure-I assessment order keeping in mind the principles laid down in the impugned order. However, in the annexure-I order there is no reference as to the order impugned herein. In fact, the impugned clarification order is already under challenge in OTA No.9 of 2016 before this Hon'ble Court as maintained by the very applicant in the said clarification proceedings. It is submitted that the issue clarified in the impugned order is with regard to separate treatment of different places of business of a dealer for the purpose of levy, assessment and collection of O.T.Appeal No.1 of 2021 4 tax and filing of return in cases where separate registration has been obtained for such units on application to the commissioner under Section 20(3) of the Act. The clarification order specifically refers to registration of applicant's units under the said provision. The Authority for Clarification has made a distinction between the principle that there is no seller and there is no seller and there is no buyer as goods are passed only between the same entity" as laid down by this Hon'ble court in Govt. Wood Workshop v State of Kerala reported in (1998) 69 STC 62 and cases where separate registrations were granted in terms of Section 20(3) of the Act, considering applications made to the commissioner. Since separate registration of different business places in the case of the appellant herein were affected not under Section 20(3) of the Act, the appellant could not have any grievance against the order impugned and therefore they have no locus standi to maintain an appeal under Section 62(1) of the Act against the same. Facts of the case would reveal that the disputed turnover relates to goods moved by the appellant claiming to be a movement otherwise than by way of sale. In the pre-assessment notice the assessing authority sought to treat the said turnover as local sales in the absence of departmental delivery notes. In the reply, the appellant has taken the stand that the goods were moved by way of local stock transfer to another unit of the appellant. They neither produced a departmental delivery note nor any other document before the officer to substantiate the claim. Later, the assessing authority confirmed the proposals holding that since the transaction is between two units having different registration numbers, transfer among such units can only be treated as sale. If the appellant feels aggrieved by the said order, they ought to O.T.Appeal No.1 of 2021 5 have worked out their remedies as provided in the Act itself instead of filing this appeal challenging a clarification order passed in a different context and asking for stay of operation of the said assessment order." The statement is placed on record and thereby there is no need for further consideration of the prayers made in the appeal. Hence O.T.Appeal stands disposed of by granting liberty to the assessee to work out remedies against Annexure-I assessment order in accordance with law. S.V.BHATTI JUDGE BECHU KURIAN THOMAS JUDGE css/