Kerala High Court
M/S.Janatha Super Bazar vs The Assistant Commissioner on 13 October, 2010
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. 17916 of 2012 (L)
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PETITIONER(S):
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M/S.JANATHA SUPER BAZAR,
BIG BAZAR, KOZHIKODE
REPRESENTED BY ITS MANAGING PARTNER C.P.KUNHI MOHAMMED.
BY ADVS.SRI.N.MURALEEDHARAN NAIR
SRI.V.K.SHAMUSUDHEEN
RESPONDENT(S):
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1. THE ASSISTANT COMMISSIONER,
SPECIAL CIRCLE - 1, COMMERCIAL TAXES,
KOZHIKODE-673 006.
2. THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL,
ERNAKULAM-682 015.
3. THE SALE TAX OFFICER (RECOVERY),
OFFICE OF THE DEPUTY COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES, KOZHIKODE-673 006.
R1 TO R3 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:
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WPC.NO.17916/2012 L
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1. TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST
RESPONDENT FOR THE YEAR 2005-06 DATED 13/10/2010.
EXHIBIT P2. TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST
RESPONDENT FOR THE YEAR 2006-07 DATED 13/10/2010.
EXHIBIT P3. TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST
RESPONDENT FOR THE YEAR 2007-08 DATED 13/10/2010.
EXHIBIT P4. TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST
RESPONDENT FOR THE YEAR 2008-09 DATED 24/09/2010.
EXHIBIT P5. TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST
RESPONDENT FOR THE YEAR 2009-10 DATED 13/10/2010.
EXHIBIT P6. TRUE COPY OF THE COMMON APPELLATE ORDER PASSED BY THE
DEPUTY COMMISSIONER (APPEALS)-II, COMMERCIAL TAXES, KOZHIKODE FOR
THE YEARS 2005 -06 TO 2009 -10 DATED 15/5/2012.
EXHIBIT P7. TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2005-06 DATED 4/7/2012.
EXHIBIT P8. TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2006-07 DATED 4/7/2012.
EXHIBIT P9. TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2007-08 DATED 4/7/2012.
EXHIBIT P10. TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2008-09 DATED 4/7/2012.
EXHIBIT P11. TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT FOR THE YEAR 2009-10 DATED 4/7/2012.
EXHIBIT P12. TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT FOR THE YEAR 2005-06 DATED 4/7/2012.
EXHIBIT P13. TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT FOR THE YEAR 2006-07 DATED 4/7/2012.
EXHIBIT P14. TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT FOR THE YEAR 2007-08 DATED 4/7/2012.
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WPC.NO.17916/2012 L
EXHIBIT P15. TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT FOR THE YEAR 2008-09 DATED 4/7/2012.
EXHIBIT P16. TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT FOR THE YEAR 2009-10 DATED 4/7/2012.
EXHIBIT P17. TRUE COPY OF THE JUDGMENT IN WA NO.743/2012 DATED 10/4/2012.
EXHIBIT P18. TRUE COPY OF THE JUDGMENT IN WPC NO.9613/2012 DATED
13/4/2012.
EXHIBIT P19. TRUE COPY OF THE JUDGMENT IN WPC NO.11037/2012 DATED
11/5/2012.
EXHIBIT P20. TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR
2005-06 DATED 19/11/2010.
EXHIBIT P21. TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR
2006-07 DATED 19/11/2010.
EXHIBIT P22. TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR
2007-08 DATED 19/11/2010.
EXHIBIT P23. TRUE COPY OF THE DEMAND NOTICE UNDER SECTON 7 OF THE
REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR
2008-09 DATED 19/11/2010.
EXHIBIT P24. TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR
2009-10 DATED 19/11/2010.
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
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RESPONDENTS' EXHIBITS
P.R.RAMACHANDRA MENON, J.
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W.P.(c) No. 17916 OF 2012
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Dated this the 1st day of August , 2012
JUDGMENT
Challenging Exts.P1 to P5 assessment orders passed by the first respondent, though the petitioner approached the First Appellate Authority, the same did not turn to be fruitful, as borne by Ext.P6. In the said circumstances, the petitioner preferred second appeals before the second respondent, by way of Exts.P7 to P11 along with Exts.P12 to P16 petitions for stay, which are pending consideration. The grievance is in respect of Ext.P20 to P24 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 WPC.No.17916/2012 2 reported in State of Kerala v. Aluva Sugar Agency ( 2008 ( 8) VST 726 (Ker) holding that the said commodity is not an edible oil, was subsequently reversed 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 vide Ext.P17 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 to 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 WPC.No.17916/2012 3 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%.
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 under 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.P7 to P11 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.P20 to P24 shall be kept in abeyance till such time.
P.R.RAMACHANDRA MENON JUDGE sv.
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