Kerala High Court
M/S.Mkc Agencies vs The Commercial Tax Officer on 31 January, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934
WP(C).No. 17917 of 2012 (L)
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PETITIONER(S):
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M/S.MKC AGENCIES
KALPETTA, REPRESENTED BY ITS PARTNER
C.K. UMMER KUTTY.
BY ADVS.SRI.N.MURALEEDHARAN NAIR
SRI.V.K.SHAMUSUDHEEN
RESPONDENT(S):
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1. THE COMMERCIAL TAX OFFICER
VALUE ADDED TAX CIRCLE,
KALPETTA-673121.
2. THE DEPUTY COMMISSIONER (APPEALS)
DEPARTMENT OF COMMERCIAL TAXES,
KOZHIKODE-673006.
3. DEPUTY COMMISSIONER
DEPARTMENT OF COMMERCIAL TAXES
WAYANAD KALPETTA-673 121.
BY SR. GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 17917 of 2012 (L)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT
FOR THE YEAR 2005-06 DATED 31-1-2011.
EXT.P2 COPY OF THE PENALTY ORDER PASSED BY 1ST RESPONDENT FOR
THE YEAR 2005-06 DATED 31-1-2011.
EXT.P3 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT FOR THE YEAR 2005-06 DATED 10-3-2011.
EXT.P4 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT FOR THE YEAR 2006-06 DATED 10-3-2011.
EXT.P5 COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2005-06 DATED 10-3-2011.
EXT.P6 COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2005-06 DATED 10-3-2011.
EXT.P7 COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT ISSUED BY 3RD RESPONDENT FOR THE
YEAR 2005-06 DATED 19-10-2011.
RESPONDENT'S EXHIBITS:- NIL
/TRUE COPY/
P.A. TO JUDGE
DCS
P.R.RAMACHANDRA MENON, J.
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W.P.(c) No. 17917 OF 2012
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Dated this the 1st day of August , 2012
JUDGMENT
Challenging Exts.P1 and P2 assessment order and penalty order passed by the first respondent, the petitioner preferred appeals before the second respondent, by way of Exts.P3 and P4, along with Exts.P5 and P6 petitions for stay, which are pending consideration. The grievance is in respect of Ext.P7 demand notice issued in the meanwhile under the Revenue Recovery Act, which is sought to be intercepted in this writ petition.
2. The learned counsel for the petitioner submits that, the basic issue is, whether the commodity dealt with by the petitioner i.e. margarine is taxable @ 12.5% or 4% being an edible oil coming under the purview of entry of 38(18) of the III Schedule, which is to be taxed only @ 4%. The law declared to the contrary by this Court reported in State of Kerala v. Aluva Sugar Agency ( 2008 ( 8) VST 726 (Ker) that the said commodity is not an edible oil was subsequently reversed WPC.No.17917/2012 2 by the Supreme Court as per the decision reported in Aluva Sugar Agency v. State of Kerala ( 2011 (45) VST 1 (SC). This being the position, the challenge raised in respect of similar circumstances has already been dealt with by this Court, particularly, by a Division Bench by judgment dated 10/4/2012 in W.A.No.743/2012 directing the Appellate Authority to consider and finalise the appeal itself to have a finality in the issue.
3. The learned Government Pleader, however, submits that the decision rendered by the Apex Court was with reference to the entry as given under the KGST Act and not under the KVAT Act. The decision rendered by the Division Bench reported in SSD Oil Mills Company Ltd. v. State of Kerala ( 2011 (37) VST 594 ( Ker) is pressed into service contending that the Bench observed that the above particular commodity has been separately described under a particular entry under the KVAT Act and it is having a separate Harmonised System of Nomenclature (HSN) Code of 1517.10. With reference to the said entry, it has been held that the commodity is liable to be taxed at a higher rate of 12.5% and not @ 4%.
WPC.No.17917/2012 3
4. After hearing both the sides, this Court finds that the issue can be finalised only by passing a proper verdict in the appeal with reference to the binding judicial precedents and the relevant entries of the KVAT Act. In the said circumstances, the writ petition is disposed of, directing the second respondent to consider and pass final orders in Exts.P3 and P4 appeals, in accordance, with law as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. Coercive proceedings pursuant to Exts.P7 shall be kept in abeyance till such time.
P.R.RAMACHANDRA MENON JUDGE sv.
WPC.No.17917/2012 4 WPC.No.17917/2012 5