Kerala High Court
Seafood Exporters Association Of India vs State Of Kerala on 16 January, 2009
Author: Kurian Joseph
Bench: Kurian Joseph, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2443 of 2008()
1. SEAFOOD EXPORTERS ASSOCIATION OF INDIA,
... Petitioner
2. M/S.ACCELERATED FREEZE DRYING COMPANY
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
3. KERALA FISHERMEN'S WELFARE FUND BOARD
4. THE DIRECTOR OF FISHERIES,
5. THE DEPUTY DIRECTOR OF FISHERIES(ZONAL)
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :16/01/2009
O R D E R
KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ.
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Writ Appeal No.2443 OF 2008
&
Writ Petition (C) No. 35636 OF 2008
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Dated this the 16th day of January, 2009.
J U D G M E N T
Kurian Joseph, J.
The appellants are the petitioners in W.P.(C) No.35636 of 2008. The validity of Sections 3(1), 3(2) and 3(3) of the Kerala Fishermen's and Allied Workers Welfare Cess Act, 2007 is the main challenge in the writ petition. There are other ancillary prayers as well.
2. The first petitioner is an Association of Seafood Exporters of India and the second petitioner is one of the members of the Association. It is seen that they have approached this Court when they were issued Exhibit P3 notice. Similar notices have been issued to other members also. They have been asked to furnish a return regarding the details of sale.
W.A. 2443/08 & W.P.(C) 35636/08 2
3. The contention of the appellants-writ petitioners is that the Act is unconstitutional. It is further contended that the Act will not apply to them since their activity is export and the allied activity is only as part of export. There are other contentions as well. Since the writ petitioners have approached this Court only at the stage of notice, it is for them to take out the contention regarding applicability of the Act while furnishing the details as requested in the notice. We make it clear that apart from the details to be furnished in the standard forms, the proposed assessee is also entitled to file an additional statement furnishing all the relevant materials supporting their contention that the Act itself will not apply to them.
4. We find that the time prescribed in Exhibit P3 and in similar notices has expired. Since the writ petitioners-appellants have been before this Court, we make it clear that it will be open to them to file such returns and statements, in the case of those who have already received notice, within a period of 30 days from today. Thereafter, it will be open to the competent W.A. 2443/08 & W.P.(C) 35636/08 3 authority to process the return, afford an opportunity for hearing to the assessee concerned and pass appropriate orders. In case the stand taken by the competent authority under the Act is against the assessees, it will be open to them to approach this Court at that stage.
5. In view of the directions as above, we make it clear that in the case of the writ petitioners, the proceedings for provisional collection of cess under Section 9 of the Act will be deferred till orders are passed by the assessing authority. Needless to say, there is no question of any interest or penalty since there is no levy or notice for payment. However, as rightly pointed out by the learned Advocate General, in case despite the liability to pay and notice regarding payment and if they fail to pay, naturally the consequences will follow.
6. In that view of the matter, we do not think anything survives in the writ appeal or in the writ petition. Therefore, with the consent of the parties, we have called for W.P.(C) No.35636/2008 and a common judgment is passed. We W.A. 2443/08 & W.P.(C) 35636/08 4 make it clear that we have not gone into the constitutional validity of the Act or any of the contentions taken by the parties. Those contentions are left open.
The first appellant has furnished a list of members in Exhibit P1. In order to avoid multiplicity of proceedings, the first petitioner will pay court fee in the writ petition in respect of all the members of the Association as per Exhibit P1 within a period of two weeks from today and hence they shall be treated as the writ petitioners.
The writ appeal and the writ petition are disposed of as above.
KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp W.A. 2443/08 & W.P.(C) 35636/08 5 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ.
W.A. No. 2443 OF 2008 & W.P.(C) No.35636 OF 2008 J U D G M E N T 16.01.2009