IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 244 of 2010(E) ------------------------ PETITIONER(S): --------------- JYOTHY LABORATORIES LIMITED, KADANASSERRY.P.O. THRISSUR. BY ADV. SRI.PREMJIT NAGENDRAN SRI.P.RAGHUNATH RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, THRISSUR. 2. THE INSPECTIRNG ASSISTANT COMMISSIONER, COMMERCIAL TAXES, THRISSUR. 3. DEPUTY COMMISSIONER(APPEALS) COMMERCIAL TAXES, ERNAKULAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 244 & 255 of 2010 ------------------------------------------ Dated, this the 6th day of January, 2010 J U D G M E N T The actual rate of tax applicable under the Kerala Value Added Tax Act ('Act' in short) in respect of the products of the petitioner marketed under the trade name “Ujala Supreme” and “Ujala Stiff & Shine” is the subject matter of challenge in this Writ Petition. 2. The case of the petitioner is that the above products clearly fall under the specific entries of 155 (8) (d) and Entry 118 of List A of the 3rd Schedule of the Kerala Value Added Tax Act which is taxable only at the rate of 4%. However, the Assessing Authority took the stand that they are covered only by the Residual Entry 103 of SRO 82/2006 in the Schedule to the Act and taxable at the rate of 12.5%. The orders passed by the Assessing Authority under similar circumstances earlier were taken up in challenge before the Appellate Tribunal who passed a verdict holding that these items are taxable only at the rate of 4%. It is stated that the department has challenged the same before this Court and the TRC filed in this regard is still pending. 3. It is brought to the notice of this Court that, with regard to the very same issue, a clarification was issued by the Commissioner WP(C) No.244 & 255 of 2010 2 under Section 94 of the 'Act' at the instance of the one of the distributors of the petitioner; holding that the above products will attract tax at the rate of 12.5%; against which the concerned parties had filed an appeal before this Court. However, they lost the battle; pursuant to which the matter is stated as taken up before the Apex Court and that it is still pending. Coming to the case in hand, the Assessing Authority, taking note of the factual position as above, has chosen to pass Ext.P1 assessment order fixing the liability at the rate of 12.5%, which in turn has been subjected to challenge by filing Ext.P2 appeal before the 3rd respondent, along with Ext.P3 petition for stay. The case of the petitioner is that it is without any regard to the pendency of the said proceedings that the second respondent has issued Ext.P4 notice under the Kerala Revenue Recovery Act; which in turn is sought to be intercepted in this Writ Petition. 4. The learned counsel for the petitioner submits that the petitioner has been made to approach this Court in every individual case because of the arbitrary course being pursued by the departmental authorities. It is also brought to the notice of this Court that similar Writ petitions have already been disposed by this Court directing to consider and finalise the appeal itslef; subject to the condition that the petitioner deposits 1/3 of the amount stated as due. 5. Heard the learned Government Pleader as well. WP(C) No.244 & 255 of 2010 3 6. Considering the facts and circumstances, the 3rd respondent is directed to consider and pass appropriate orders on Ext.P2 appeal in accordance with law, of course after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. It is made clear that all further coercive proceedings pursuant to Ext.P1 and P4 shall be kept in abeyance, subject to the condition that the petitioner deposits 1/3 of the amount due within two weeks from today. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON JUDGE dnc WP(C) No.244 & 255 of 2010 4