IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 WP(C).No. 19438 of 2007(L) -------------------------- PETITIONER(S): --------------- MATHEW.K., PROPRIETOR, M/S.DECCAN CABLES INDUSTRIES, THRIPPILAZHIKOM PO, KUNDARA. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): --------------- 1. THE DIRECTOR OF INDUSTRIES AND COMMERCE, OFFICE OF THE DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM. 2. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KOLLAM. GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF COVERING LETTER DT 29.4.03 P2 COPY OF APPEAL DT 29.4.03. P3 COPY OF APPEAL MEMORANDUM DT 29.4.03. P4 COPY OF ORDER OF R1 DT 28.5.07. P5 COPY OF INVOICE DT 24.10.90. P6 COPY OF INVOICE DT 26.8.91. P7 COPY OF INVOICE DT 25.4.92. P8 COPY OF REPORT OF ADDITIONAL DISTRICT INDUSTRIES OFFICER DT 7.2.94. P9 COPY OF ACCOUNTS OF THE PETITIONER. P10 COPY OF C-FORM DT 24.10.90. P11 COPY OF C-FORM DT 25.4.92. P12 COPY OF REGISTER OF DECLARATION FORMS. // TRUE COPY // P.A. TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 19438 OF 2007 L ```````````````````````````````````````````````````` Dated this the 28th day of October, 2008 J U D G M E N T Briefly put the case of the petitioner is as follows. Petitioner is running a Small Scale Industrial unit manufacturing cables. The petitioner raised claim for exemption under the KGST Act and also subsidy. It is rejected and the petitioner preferred appeals which came to be rejected by Ext.P4 order. 2. I heard learned counsel for petitioner and learned Government Pleader. The petitioner has been granted the benefit except in respect of the machinery. According to the petitioner, the machinery was purchased from M/s.Precision Engineers located in the State of Karnataka. Exts.P5 and P6 are the invoices issued, according to the petitioner, by M/s.Precision Engineers in respect of machinery in question. Ext.P8 is dated 7.2.1994 and it is a communication from the Assistant District Industries Officer to the General Manager, DIC, Kollam. This is produced to show that there is an inspection by an officer and he has certified therein that the machinery is in good and working condition and are brand in new in conformity with the bills/vouchers produced by the unit WPC.19438/07 : 2 : along with the application. The petitioner has also produced as Ext.P9 copy of the accounts. Ext.P10 is the photocopy of the C- Form declaration dated 24.10.1990. Ext.P12 is stated to be the register of declaration forms maintained under Rule 11(5) of the Central Sales Tax (Kerala) Rules. Counter affidavit is filed. 3. In Ext.P4, it is, inter alia, stated as follows: “ The appeal of the petitioner was verified by the General Manager, DIC, Kollam and it was reported that in order to ascertain the genuineness of the purchase of the machinery, a letter was sent in the address of the supplier and the same was returned undelivered and it was presumed that such a company is not existing.” It is further stated that the petitioner has not produced any satisfactory evidence to prove interstate transportation of the machinery. It is further stated that the petitioner has not produced any satisfactory evidence to prove that the machineries are brand new and thus, the claim of the petitioner for subsidy benefits in respect of machinery was denied. Learned counsel for the petitioner would point out that Ext.P8 report by an officer who has inspected the premises would bear out the contention of the WPC.19438/07 : 3 : petitioner that machinery is indeed new. It is pointed out that what is stated in the counter affidavit would also show that Ext.P4 has not been given the importance that it should have been given without justification. Learned counsel for petitioner would submit that C-Form was given only on 13.9.1993. 4. If two views are possible in a writ proceeding, the writ court will not interfere. It cannot be disputed that for availing benefit like exemption and subsidy, it is a condition precedent that the party must have installed new machinery. It has been found by the respondent that new machinery was not installed there. In arriving at that conclusion, the appellate authority has found that though a letter was issued to the consignor, it is returned unserved and the petitioner has not produced any material to show that there is a transportation of the so called goods. In this regard, if a perusal is made of Ext.P12, there is no mention in the said Form about the mode of transport. Certainly the petitioner could have produced the lorry receipt or other receipt evidencing the mode of transportation. It may be true that in Ext.P4 there is no direction to produce these documents. But when once there is a finding in the order that there is no material to show that there is transport, WPC.19438/07 : 4 : certainly it was open to the petitioner to make available the said documents. The fact that the Assistant District Industries Officer has sent Ext.P8 report in the circumstances of this case cannot be sufficient to out weigh the other circumstances which has already been indicated. Learned counsel for petitioner had also a contention that though the petitioner has filed two appeals, only the appeal relating to subsidy was dealt with and the appeal regarding exemption was not considered. I see no merit in the contention. It is true that the petitioner preferred Exts.P2 and P3 appeals. It is pointed out by the learned Government Pleader that for granting the benefit of exemption as also subsidy, machinery installed must be new. On the basis of the same and a perusal of the impugned order it could be said that the authority has declined the requests of the petitioner. Another view may be possible. But it is settled law that the court will not interfere in a writ proceeding only because of another view is possible. In such circumstances, writ petition fails and it is dismissed. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE