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216 Goods & Services Tax Cases - Reports [Vol. 1 trade circles is also required to be examined with reference to the instant case and examine whether they are understood in common parlance and in trade circles. Admittedly, the process carried out in extraction of oleoresin, the reminiscence that would follow are, cut chilly, crushed chilly and spent chilly and it is sold as a separate commodity and accepted both in trade and common parlance and it does not lose its identity by virtue of such extraction process. The originality of such commodity remains as such. Hence, in view of the same, we are of the view that the judgment of this Court in Habeeb Proteins would be squarely applicable to the facts of the present case. 14. Yet another factor which requires to be considered in favour of the assessee is the subsequent amendment brought about to the Entry No. 89 where under the Legislature in its wisdom has included crushed chilly, cut chilly and spent chilly by adding the same after the words “dry chillies”. Hence, we find that the Advance Ruling Authority was in error in holding that the residuary clause viz. section 4(1)(b) of the Act was applicable to the facts of this case viz. the commodity in question and the ruling that the assessee is liable to pay tax at 12.5 per cent for the period 1-4-2005 to 31-3-2006. 15. In view of our discussion made herein above, we hold that crushed chilly, spent chilly is a spice by itself which can be sold and traded in common parlance and accordingly, tax leviable would be at the rate of 4 per cent and it comes within Entry No. 61 under the definition of “dry chillies” and accordingly, we answer the questions of law formulated herein above in favour of the assessee, against the revenue by holding that the Advance Ruling Authority was in error. Accordingly, the appeal filed by the assessee is allowed without any order as to costs. ■■ GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 92 A B C D E F G
2010] Cheerans Auto Agencies v. State of Kerala (Ker.) 217 A B C D E F G [2010] 1 GST 217 (KER.) HIGH COURT OF KERALA Cheerans Auto Agencies v. State of Kerala* C.N. RAMACHANDRAN NAIR AND V.K. MOHANAN, JJ. O.T. REV. NOS. 29 AND 35 OF 2009 (C.R.) SEPTEMBER 24, 2009 PENALTY - In case of non-disclosure of sales turnover of old vehicles - Assessment years 2005-06 and 2006-07 - Assessee, a registered dealer, was engaged in sale of two-wheelers - It conducted exchange mela wherein owners of old two-wheelers were provided with facility to exchange their old vehicles with new ones - As per terms of agreement, if value of old vehicle fixed by assessee’s broker was accepted by customer then he could purchase new vehicle from assessee by remitting balance sale price - Subsequently, broker sold old vehicles delivered by customers and remitted value earlier fixed to assessee with which entire price of new vehicles sold to customers, got paid - Even though old two wheelers were purchased from customers and resold later by assessee and broker, neither assessee nor broker conceded any purchase and sale of old vehicles - In view of non-payment of tax on sale of old vehicles, Intelligence Officer levied penalty under section 67 - Whether having regard to fact that purchase and sale of old vehicles were either by or on behalf of assessee, impugned penalty order passed by Intelligence Officer was to be confirmed - Held, yes [Section 67 of the Kerala Value Added Tax Act, 2003] FACTS The assessee, engaged in the sale of two wheelers, was a registered dealer under the Act. During the relevant assessment years, the assessee conducted exchange melas wherein old two wheeler owners were provided with facility to exchange their old vehicles with new ones. The assessee arranged a broker for purchase of old vehicles from the customers at the value fixed by the broker. If the value fixed by the broker was accepted by the customer, then he could purchase the new vehicle from the assessee by remitting the balance sale price. The assessee sold new vehicle at the original cost to the customer but by collecting only the price of the new *In favour of revenue. GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 93
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