An assessee is entitled to invoke the suo mote power of revision of the Deputy Commissioner under S.35, and the Deputy Commissioner is bound to exercise the power to ensure that injustice is avoided.

1. An interesting question of law untraversed by any decision of this court arises for decision in this case. The question is whether an assessee could seek intervention in his favour by the Deputy Commissioner under S.35 of the Kerala General Sales Tax Act, 1963 (the 'Act' for short).

2. The facts leading to this Original Petition are short. The petitioner is running a small printing press in which he gets printed letter heads, bill books, account books, invitation cards and the like on orders placed by customers. Assessments were completed on him under the Act for the years 1980-81,1981-82 and 1982-83 accepting his returns. However, he was charged tax at the rate of 8 percent treating the items supplied as "paper products".

3. This court has in a series of cases, starting with P.K. Dewer v. State of Kerala (1974) (33 STC 73) held that such materials as those printed by the petitioner were not paper products, but general goods.

4. The Board of Revenue had also confirmed this in a clarification (Ext.P4) issued by them to M/s. Printocraft of Cochin. Based on these decisions as also the clarification made by the Board of Revenue, the petitioner filed applications before the assessing authority, the first respondent, under S.43 of the Act requesting him to rectify the mistake in the assessments for the three years aforesaid by reducing the rate of tax applied from the single point rate of 8 percent to the multipoint rate. The assessing authority, however, by-passed the request with a reply that the assessments could not be rectified as "disputed questions" were involved. The petitioner, therefore, moved the Deputy Commissioner of Agricultural Income Tax and Sales Tax, Palghat, the 2nd respondent, invoking his suo mote power of revision under S.35 of the Act "to cure illegality in the assessments" by setting aside the same and directing fresh assessments applying the correct rate of tax. Those applications are Exts.PS, P6 and P7. They, however, met with swift dismissal at the hands of the 2nd respondent by his order Ext.P8, on the ground that the impugned orders of assessment were appealable and that suo mote power could not be exercised at the instance of the assessee. It is this order that is under challenge in this Original Petition.

5. The question that arises for consideration, therefore, is whether an assessee could invoke S.35 in relation to an order of assessment passed under S.17 of the Act. It has to be remembered that an order of assessment is appealable to the Appellate Assistant Commissioner as defined in S.2(i) of the Act. The Deputy- Commissioner exercises his powers of revision under S.35 and 36, S.35 conferring the power to be exercised suo motu of his own motion and S.36 conferring me power to be exercised on application. S 36 can be invoked only in the case of those proceedings or orders for which, an appeal has not been provided for in S.34 or S.39 (S.34 deals with appeals to the Appellate Assistant Commissioner and S.39 with appeals to the Appellate Tribunal.). In other words, no revision under S.36 lies if the order or proceeding in question is appealable. There is no such prohibition in regard to S.35 and it is described as a power given to the Deputy Commissioner, of his own motion, to call for and examine the record of any order passed or proceedings recorded by an officer or authority subordinate to him (Other than the Appellate Assistant Commissioner); I shall extract the relevant parts of the two Sections below:

"35. Powers of revision of the Deputy Commissioner suo mote:- (1) The Deputy Commissioner, may of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit".

(3) "No order under this section adversely affecting a per