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PETITIONER: P. MYTHEENKANNU

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       30/07/1997

BENCH: S. P. BHARUCHA, V. N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KHARE J.      The appellant,  who is  a dealer in Ayurvedic herbs and oils, supplied  ayurvedic herds  to the Government Ayurvedic College, Trivandrum  during the  assessment  years  1984-85, 1985-86 and 1986-87 and, consequently, filed returns in Form 8 of  Kerala General  Sales Tax Act (hereinafter referred to as ‘the  Act’), claiming  exemption on  entire turn-over for the aforesaid  three  assessment  years.  The  exemption  so claimed was on the basis that ayurvedic herds are taxable at the point  of last  purchase in the State by a dealer who is liable to  pay tax.  The Ayurvedic  College being  the  last purchaser, the appellant obtained valuation certificate from the College  for quantity  of herds  purchased by  them  and furnished  the  same  before  the  Sales  Tax  Officer.  The Additional Sales  Tax Officer,  Trivandrum and  further  two appellate courts  did not  accept the claim of the appellant for  exemption   of  tax  in  view  of  the  fact  that  the certificate produced  by the  appellant was  not in Form-25. The Writ  Partition filed  at the  instance of the appellant against the  order of  the Sales  Tax Authorities  was  also dismissed by  the  High  Court  of  Kerala.  The  Sales  Tax Authorities as  well as the High Court were of the view sub- rile (14)  of Rule  32 being mandatory, the appellant is not entitled to claim any exemption from tax unless he furnishes a certificate  of declaration  in Form-25 from the person to whom he  sold the  goods. This  view taken by the High Court has been  challenged in  this appeal.  It was urged that the valuation certificate  obtained from  the party  to whom the goods  had   been  sold   was  substantial   compliance   of requirement of sub-rule (14) of Rule 32 of the Rules, having regard to  the fact  that party,  being a  government  body, could not fulfil all the requirements of Form-25.      Having heard the matter and perused the record, we find the crucial  question that arises in the present appeals is, as to  whether the  Government Ayurvedic College, Trivandrum comes within  the expression"  State" occurring  in  Section 2(viii) of  the Act  which defines  "dealer".  Further,  the second question  that arises  for consideration  is,  as  to whether the  certificate issued  by  the    Govt.  Ayurvedic

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College substantially satisfied the requirements of sub-rule (14) of  Rule 32  and Form-25.  But,  these  questions  have neither been  dealt with by the Sales Tax Authorities nor by High Court.  Initially, we thought to decide these questions here. But,  in the absence of material facts, it is not safe to  decide   these  questions   in  this   appeal.  In  such circumstances, we  set aside  the order  and judgment of the High Court  of Kerala dated 3.9.1989 in TRC Nos. 106,107 and 108 of  1989, send  these cases  back to  the High Court for deciding the  questions referred  to above.  The appeals are allowed. There shall be no order as to costs.