IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 726 of 2009(J) ------------------------------------------ PETITIONER(S): ----------------------- KALAIMAGHAL, PROPRIETOR, M/S. MURUGAN AGENCIES, DOOR NO, 31/599 KANNAKIAMMAN KOVIL STREET, BIG BAZAR,PALAKKAD. BY ADV. SRI.BOBBY JOHN RESPONDENT(S): -------------------------- 1. THE COMMERCIAL TAX OFFICER (AA) COMMERCIAL TAXES, PALAKKAD. 2. THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, PALAKKAD. 3. THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 726 OF 2009 J -------------------------------------- Dated this the 8th January, 2009 JUDGMENT Petitioner challenges Ext.P5 series and Ext.P6 series of orders. Petitioner seeks a direction to keep in abeyance all further recovery proceedings pursuant to the impugned orders. Ext.P5 series are assessment orders while Ext.P6 series are penalty orders. Petitioner is a registered dealer engaged in the trading of betal nut, pan parag, etc. The question involved essentially is as to the appropriate Entry under which the product of the petitioner which the petitioner claims as scented betal nut, falls. The Commissioner issued Ext.P3 clarification by which the product is to be taxed at 12.5 per cent. That came to be challenged by an assessee in an Appeal and by Ext.P4 Judgment, a Division Bench of this Court allowed the Appeal and remitted the matter back for reconsideration. According to the petitioner, the assessments as also the penalty are based on WPC. 726/09 J 2 the clarification and no purpose would be served if statutory remedies are availed of. It is pointed out by the learned Government Pleader that the impugned orders are not based on the clarification. 2. It is to be noted that the assessments as also the penalty orders may have been based on the clarification. But, the clarification itself is no longer survives after Ext.P4 Judgment and if Appeals are filed, there is no reason to think that the Appellate Authority would still think itself bound by what was stated in Ext.P3 clarification for, as already noted, it has perished a natural death, in view of the judicial intervention as reflected in Ext.P4 Judgment. In such circumstances, I do not see any reason why the petitioner should not be relegated to pursue the alternate remedies open to the petitioner. Accordingly, the Writ Petition is disposed of as follows: Recovery steps initiated against the petitioner will be kept WPC. 726/09 J 3 in abeyance for three weeks from today. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge