ORDER :

This appeal is directed against the judgment and order passed by the High Court of Judicature of Kerala at Ernakulam in W.A. No. 1141 of 2002, dated 27.11.2003. By the impugned judgment and order, the Division Bench of the High Court has confirmed the judgment and orders passed by the Single Judge and has come to the conclusion that the Assessing Authority was justified in imposing additional tax under Section 5D of the Kerala General Sales Tax Act, 1963 (for short "the KGST Act").

2. The Facts in brief are as under: The appellant is a dealer in gold and silver ornaments. It is registered both under the KGST Act and the Central Sales Tax Act, 1956. The appellant had opted to pay tax at the compounded rate as provided under Section 7 of the KGST Act and the request of the appellant was accepted by the Department. The appellant continued to pay tax at the compounded rate for the assessment year 2001-02.

3. On 23rd July, 2001, the Legislature had brought in an amendment to the KGST Act by inserting Section 5D to the KGST Act, levying additional tax on those dealers who are taxable under Section 5 and 5A of the KGST Act. The appellant in accordance with this provision deposited additional tax for the months of July and August 2001 Being aggrieved by the demand of additional tax under Section 5D of the KGST Act for the afore said months and also for subsequent months, the appellant has approached the Writ court.

4. The learned Single Judge of the High Court after a careful consideration, has come to the conclusion that when a dealer exercises his option to pay tax at the compounded rate under Section 7 of the KGST Act, it pays the tax payable under Section 5(1) of the KGST Act and therefore the appellant is liable to pay the additional tax under Section 5D of the KGST Act. The Division Bench of the High Court has confirmed the orders passed by the learned Single Judge. It is the correctness or otherwise of the said order, which is called in question by the appellant before this Court.

5. We have heard the learned counsel for the parties to the lis.

6. In order to appreciate the stand of the learned counsel for the parties, it is useful to refer to Section 7 of the KGST Act, for relevant assessment year.

"7. Payment of tax at compounded rates.- (1) Notwithstanding anything contained in sub-section (1) of section 5.

(a) Any dealer in gold or silver ornaments or wares, may, at his option instead of paying tax in accordance with the provisions of that sub section, pay tax at one hundred and thirty percent of the tax payable by him as conceded in the return or accounts or the tax paid for the previous consecutive three years whichever is higher."

7. The Section be gins with the phrase "not with standing anything contained in sub section (1) of Section 5." The purpose is to give the provision contained in the non-obstante clause an over riding effect to the provision of sub section (1) of Section 5 of the KGST Act. The said section speaks of levy of tax on sale of purchase of good son the taxable turnover. The heading of Section 7 of the KGST Act speaks of "Payment of tax" at the compounded rate in lieu of tax payable under Section 5 or 5Aof the KGST Act.

8. Now we refer to Section 5D of the KGST Act which is inserted with effect from 23.07.2001. It is as under:

"5-D. Levy of Additional Sales Tax : The tax payable under Section 5 and Section 5A shall be increased by an additional sales tax at the rate of fifteen per cent of the tax payable under the said sections:

Provided that no additional sales tax under this section shall be levied --

(a) On the tax payable on High speed Diesel oil, Petrol and Liquefied Petroleum Gas falling under sub-items (i), (v) and (viii) respectively of serial number 108 and Foreign Liquor falling under serial number 60 of the First Schedule.

(b) On any goods falling under the Second Schedule in such away that the tax leviable under Section 5 and Section 5A and that leviable under this Section together exceed four pe