JUDGMENT C. N. RAMACHANDRAN NAIR, J. – The petitioner is challenging sales tax assessment, namely, exhibit P1, which is issued based on exhibit P4 clarification issued by the Commissioner of Commercial Taxes under section 59A of the Kerala General Sales Tax Act, 1963. The petitioner's contention is that even though the clarification is not specifically referred to in exhibit P1 assessment order, the same is relied on by the assessing officer. According to the petitioner, in view of exhibit P4 clarification issued by the Commissioner, based on which assessment is completed, there is no scope for filing appeal before another departmental officer, who is also subordinate to the Commissioner and who is bound by the clarification. The clarification in exhibit P4 issued under section 59A is directly on the point and the petitioner's submission is that since the appellate authority is not free to decide the appeal on merits independently, the original petition should be entertained against clarification as well as against assessment. I heard learned counsel for the petitioner, the learned Government Pleader and I have also gone through exhibit P4 clarification. The petitioner is engaged in manufacture of wooden furniture. The petitioner purchased timber from local suppliers by claiming concessional rate of tax under section 5(3) of the Kerala General Sales Tax Act, 1963 against issue of form 18. The suppliers who supplied the timber to the petitioner were assessed on the basis of form 18 declaration issued by the petitioner. However, the assessing officer reopened the petitioner's assessment under section 19 of the Kerala General Sales Tax Act, 1963 and demanded tax at 2 per cent on the purchase turnover of timber by applying section 5(1)(v)(a) of the Kerala General Sales Tax Act. The petitioner questions the levy of tax at 2 per cent on the purchase turnover of timber under section 5(1)(v)(a) on the ground that the said section has no application. The learned Government Pleader, on the other hand relied on the clarification of the Commissioner whereunder the Commissioner has taken the view that section 5(3) is a benefit granted to the supplier and notwithstanding any such concession granted to the supplier, the purchaser is liable to pay tax under section 5(1)(v)(a). The learned Government Pleader, on the other hand relied on the clarification of the Commissioner whereunder the Commissioner has taken the view that section 5(3) is a benefit granted to the supplier and notwithstanding any such concession granted to the supplier, the purchaser is liable to pay tax under section 5(1)(v)(a). The contention of learned counsel for the petitioner is that the benefit of concessional rate of tax under section 5(3) is available to the purchaser and the Commissioner's clarification in exhibit P4 that the levy of tax under section 5(3) has to be considered at the hands of the supplier and liability under section 5(1)(v)(a) in the hands of the purchaser is illogical and against statutory scheme. The item purchased is of course timber, which is covered by item 8 of the Fifth Schedule. Both timber and plywood come under Fifth Schedule as items 4 and 8. For easy reference the entries in the Fifth Schedule are quoted hereunder : "--------------------------------------------------------------------------------------------------------------- Sl. Description First point Rate Second Rate Where there are Rate No. of of levy of point of of no two points of of goods tax levy tax sale in the State tax (per- (per- (per- cent) cent) cent) ---------------------------------------------------------------------------------------------------------------- (1) (2) (3) (4) (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------------- 1. Foamed At the point 8 At the 2 At the point of 10 rubber of first sale point of first sale in the sheets, in the State last sale State by a dealer cushions by a dealer in the who is liable to and pillows who is State by a tax under section lows and liable to tax dealer 5 to a person other under who is other than a articles of section 5 to liable to registered dealer foamed a registered tax under or to a registered rubber. dealer for section 5 dealer other than sale for sale. * * * 4. Plywood, do 10 do 2 do 12 veneer plywood, particle board and veneers not covered by entry 138 of the First Schedule * * * 8. Timber do 10 do 2 do 12 * * * ----------------------------------------------------------------------------------------------------------------" The scheme of levy of tax on timber under the Fifth Schedule, therefore, is to collect tax at 10 per cent when the sale is by registered dealer to another registered dealer for resale in the State. Timber do 10 do 2 do 12 * * * ----------------------------------------------------------------------------------------------------------------" The scheme of levy of tax on timber under the Fifth Schedule, therefore, is to collect tax at 10 per cent when the sale is by registered dealer to another registered dealer for resale in the State. However, when the sale is to a person other than a registered dealer or to a registered dealer not for resale, tax to be collected is at 12 per cent. In this case, the petitioner, though a registered dealer, admittedly purchased timber from another registered dealer it was not for resale but for manufacture of furniture and so much so, rate of tax applicable is under column (8) of the Fifth Schedule which is 12 per cent. It is the settled position that section 5(3) applies to items coming under the Fifth Schedule also and therefore, any purchaser of industrial raw materials, packing materials, etc., falling under the Fifth Schedule also can avail the benefit of concessional rate under section 5(3) by issuing form 18. The petitioner has therefore issued form 18 and availed concessional rate of tax provided under section 5(3). In fact as regards form 18 issued, no dispute is raised by the assessing officer and the petitioner's eligibility to issue form 18 for availing concessional rate under section 5(3) is beyond dispute. The next question is whether the clarification of the Commissioner that section 5(1)(v)(a) which applies to the petitioner is correct. The clarification though issued on application by another dealer who is similarly placed as the petitioner squarely applies to the petitioner. The next question is whether the clarification of the Commissioner that section 5(1)(v)(a) which applies to the petitioner is correct. The clarification though issued on application by another dealer who is similarly placed as the petitioner squarely applies to the petitioner. Section 5(1)(v) is extracted hereunder for easy reference : "(v) in the case of goods specified in the Fifth Schedule at the rates and at the two points specified against such goods in the said Schedule : Provided that where there are no two points of sale in the State for any goods coming under the Fifth Schedule and the first sale is to a person other than a registered dealer, the rate specified column (8) of that Schedule shall apply to such sales : Provided further that the registered dealer effecting the last sale within the State to a person other than a registered dealer shall, pay tax at the rates shown in column (6) or in column (8), as the case may be, of the Fifth Schedule irrespective of his turnover : Provided also that where a registered dealer, after purchasing the goods on payment of the tax mentioned in column (4) of the Fifth Schedule, - (a) uses or disposes of such goods in any manner other than by way of sale within the State, or (b) despatches them to any place outside the State except as a direct result of sale in the course of inter-State trade or commerce, he shall pay tax at the rate shown in column (6) of the said Schedule on the purchase turnover of the goods : Provided also that where no tax is payable by a dealer effecting the first sale within the State, to a registered dealer for sale then the dealer effecting the subsequent sale within the State shall pay tax at the rates shown in column (4) of the Fifth Schedule and where there are no two points of sale in the State for any goods coming under the Fifth Schedule and the subsequent sale is to a person other than a registered dealer, or to a registered dealer other than for sale the rate specified in column (8) of that Schedule shall apply to such sales;" It is clear from clause (a) of last proviso to section 5(1)(v)(a) that it applies only to a case where the purchaser pays tax under column (4) of the Fifth Schedule to the Kerala General Sales Tax Act. The purchaser from whom tax is collected by the seller under column (4) is a registered dealer who purchases the item by declaring that the purchase is for resale in the State. This is done by the purchaser issuing declaration in terms of rule 32(13C) and the form prescribed is form 25A. Therefore, operation of section 5(1)(v)(a) is limited to cases where the purchasing dealer after declaring in form No. 25A furnished that the item purchased is for resale in the State fails to sell the goods again on payment of tax at 2 per cent. Admittedly, the petitioner has not issued form 25A and has not claimed the benefit of concessional rate of tax under column (4) of the Fifth Schedule to the Kerala General Sales Tax Act. I find, the petitioner is a dealer who has availed concessional rate under section 5(3) of the Act by issuing form 18 prescribed under rule 28 of the Kerala General Sales Tax Rules, and but for the benefit claimed by the petitioner tax would have been payable by the seller under column (8) of the Fifth Schedule at 12 per cent. Therefore, section 5(1)(v)(a) does not apply to the purchases made by the petitioner against form 18 issued by him. In other words, it can be generalised by saying that section 5(1)(v)(a) does not apply to purchasers claiming concessional rate of tax in respect of goods under the Fifth Schedule based on form 18 issued by them under rule 28 of the Kerala General Sales Tax Rules prescribed under section 5(3) of the Act. The clarification of the Commissioner to the contrary is unsustainable. In principle, the Commissioner's finding that section 5(1)(v)(a) applies to the purchasing dealer and is an independent charging section, is correct. However, his finding that the said section applies also to purchases covered by section 5(3) is incorrect, because rate of tax under the charging provision in the Fifth Schedule for sales covered by section 5(3) is the rate provided in column (8) of the Fifth Schedule and not column (4). In the circumstances, the clarification is declared wrong and the petitioner is not liable to pay tax under section 5(1)(v)(a) in respect of the purchase turnover of timber used for manufacture and purchased against form 18. In the circumstances, the clarification is declared wrong and the petitioner is not liable to pay tax under section 5(1)(v)(a) in respect of the purchase turnover of timber used for manufacture and purchased against form 18. The assessing officer is directed to modify exhibit P1 assessment deleting the demand under section 5(1)(v)(a) in respect of purchase turnover covered by section 5(3). The original petition is allowed. Petition allowed.