IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 WP(C).No. 24397 of 2010(Y) -------------------------- PETITIONER: -------------------- SPM POWER AND TELECOM PRIVATE LIMITED, HAVING REGISTERED OFFICE AT PLOT NO.A-28/1/12, I.D.A., NACHRAM, HYDERABAD, ANDHRA PRADESH. BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.P.REJINARK SRI.SEBASTIAN THOMAS RESPONDENTS: ---------------------- 1. M/S.BHARAT SANCHAR NIGAM LIMITED, REP. BY ITS CHIEF GENERAL MANAGER TELECOM, KERALA CIRCLE, THIRUVANANTHAPURAM 695 033. 2. COMMISSIONER OF THE COMMERCIAL TAXES, THIRUVANANTHAPURAM 695 001. 3. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM 695 001. 4. STATE OF KERALA, REP. BY ITS FINANCIAL SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001. R1 BY ADV. SMT.S.K.DEVI,SC, BSNL BHARAT SANCHAR R2 TO R4 BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, ALONG WITH WPC NO. 24488 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J ----------------------------------------------- W.P(C) Nos.24397/2010, 24441/2010, 24488/2010 & 24493/2010 ------------------------------------------------------ Dated this the 19th day of November, 2010. J U D G M E N T The petitioners in these writ petitions are suppliers of telecommunication cables to the first respondent, M/s.Bharat Sanchar Nigam Limited, which is a company owned by the Union Government. With respect to goods supplied by the petitioners to the first respondent, the authorities of the Commercial Tax Department had collected tax at the rate of 12.5%, at the time when the goods entered into the boarder of the State of Kerala. Subsequently, the rate of tax with respect to the goods in question was re-fixed at 4%. When the matter was brought to the notice of the first respondent, the petitioners were advised to take up the matter directly before the authorities of the Commercial Tax Department. Since BSNL is not in a position to claim refund, on the basis of advise obtained from the first respondent, the petitioners claim that they W.P(C) Nos.24397/2010, 24441/2010, 24488/2010 & 24493/2010 2 have sent letters to the Commissioner of Commercial Taxes, claiming refund of the excess amount paid. But the Commissioner of Commercial Taxes had caused a reply (Ext.P5 produced in W.P(C) No.24488 of 2010) intimating that the remittance of entry tax was effected in the name of the first respondent and that receipt in this regard was issued only in their name. Therefore, it is for the first respondent to claim refund, if any legitimately due to them, under the Act. 2. When the petitioners approached the first respondent again, the first respondent had addressed the authorities of the Commercial Tax Department explaining the matter. It is stated that BSNL is not in a position to claim the refund as no amount under the head of Entry Tax stands paid in the books of account of BSNL. It is made clear that, remittances were made by the suppliers, in the name of BSNL, and the Assistant Commissioner, Special Circle, Thiruvananthapuram had already issued 'no W.P(C) Nos.24397/2010, 24441/2010, 24488/2010 & 24493/2010 3 objection certificate' for refund of the excess amount. On that basis the first respondent had requested the Assistant Commissioner, Special Circle, Commercial Taxes, Thiruvananthapuram to effect refund of the entry tax paid in excess, directly to each of the suppliers. Grievance of the petitioners is that inspite of such requests made, no steps have been taken for effecting refund of the excess collection of entry tax. 3. In a statement filed on behalf of the third respondent it is mentioned that the actual rate of tax for telecommunication cables, at the time of entry of the goods into the State of Kerala was 12.5%. But the same was reduced to 4% as per Entry No.48 in G.O(P) No.6/06/TD dated 21.1.2006, with effect from 1.4.2005. It is further stated that none of the petitioners have filed any proper application seeking refund of the excess payment before the Commercial Tax Officer, 2nd Circle, Palakkad, where such remittance were made. It is stated that since the concerned W.P(C) Nos.24397/2010, 24441/2010, 24488/2010 & 24493/2010 4 files evidencing such remittance and copies of challans are not available in the office of the third respondent, refund could not be effected from that office. It is stated that if the petitioners file proper application before the concerned office, with all relevant records and details of such payment effected, the same can be considered. It is also mentioned that against the judgment reported in Thressiamma L. Cherayil V State of Kerala & another (2007(15) KTR 66 (Kerala) through which validity of the statute has been struck down, the Government had already preferred Special Leave Petition before the Hon'ble Supreme Court and the matter is pending final decision. 4. Considering the above aspects, I am of the view that as observed in the statement filed by the respondents, it is for the petitioners to make proper applications before the appropriate authority, on production of necessary documents evidencing payment of entry tax. 5. Needless to say that, if the petitioners make any W.P(C) Nos.24397/2010, 24441/2010, 24488/2010 & 24493/2010 5 such applications before the authority to whom the payment was effected, such authority shall consider the applications and dispose of the same at the earliest possible, at any rate within a period of six weeks from the date of receipt of such applications. The writ petitions are disposed of with the above observations. C.K.ABDUL REHIM, JUDGE ab