IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 33333 of 2011(N) ------------------------------------- PETITIONER(S): --------------------- A.A.FRANCIS, FRANJO ENGINEERING CORPORATION, 35/421(17),RAZI PALACE,1ST FLOOR, OLAVAKKODE,PALAKKAD. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): ------------------------ 1. THE INTELLIGENCE OFFICER, SQUAD NO.VII, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD 678 001 2. THE ASSISTANT COMMISSIONER(APPEALS) DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD 678 001 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD 678 001 BY GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 33333/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE RAILWAY ACCOMPANIED WITH GOODS DATED 13.10.2010 EXT.P2 TRUE COPY OF THE LETTERE ISSUED BY THE RAILWAY TO THE SALES TAX DEPARTMENT DATED 14.10.2010 EXT.P3 TRUE COPY OF THE GATE PASS ISSUED BY THE RAILWAY RELATING TO THE GOODS DATED 12.10.2010 EXT.P4 TRUE COPY OF THE PENALTY ORDER PASSED BY 1ST RESPONDENT ` FOR THE YEAR 2010-11 DATED 22-06-2011 EXT.P5 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 03.11.2011 EXT.P6 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 03.11.2011 EXT.P7 TRUE COPY OF THE INTERIM ORDER PASSED BY 2ND RESPONDENT DATED 22.11.2011 EXT.P8 TRUE COPY OF THE LETTER ISSUED BY COMMERCIAL TAX OFFICER DATED 27.03.2009 EXT.P9 TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE REVENUE RECOVERY ACT ISSUED BY 3RD RESPONDENT FOR THE YEAR 2010-11 DATED 17.08.2011 RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE SD S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.33333 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2011 J U D G M E N T Against orders of penalty, the petitioner filed an appeal and a petition for stay before the appellate authority. The appellate authority dismissed the stay petition by Ext.P7 order. The petitioner challenges that order. The petitioner submits that as evidenced by Ext.P8, more amounts than the amount of penalty imposed on the petitioner is due to the petitioner towards refund and therefore it is unjust to recover the penalty while amounts are due as refund from the petitioner. In view of the said contention, I directed the learned Government Pleader to get instructions as to whether refund is due as evidenced by Ext.P8. The learned Government Pleader today admits that certain amounts are due towards refund. But there is some confusion regarding the exact amount due and that is why the amount has not yet been paid. W.P.(C)No.33333 of 2011 -2- I am of opinion that it is unjust to recover amounts from the petitioner, when refund amounts are due to the petitioner. In the above circumstances, I quash Ext.P7 order and direct the 2nd respondent appellate authority to consider and pass orders on the petitioner's appeal, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Till disposal of the appeal, the recovery of the disputed penalty shall be kept in abeyance. However the refund amounts due need be paid only after the appeal is decided and if after orders are passed on the appeal, if amounts are due from the petitioner the same shall be adjusted against the refund amounts due. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/