IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 WP(C).No. 12902 of 2009(G) -------------------------- PETITIONER: --------------- KERALA TRADE LINKS, ADICHIRA, ETTUMANOOR, KOTTAYAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.P.ABDUL KHADER. BY ADV. SRI.VIJAYAN. K.U. ADV. SRI.K.N.SREEKUMAR RESPONDENTS: --------------- 1. COMMERCIAL TAX OFFICER (AA), KOTTAYAM. 2. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOTTAYAM. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. 4. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 12902 OF 2009 ......................................................................... Dated this the 27th May, 2009 J U D G M E N T The case of the petitioner is that he is dealing with unbranded biscuits, confectionery, agarbathi etc and that the prescribed rate of tax in respect of such goods is only 4% and he has been remitting the tax accordingly. However, because of the difficulties expressed by the customers of the petitioner in dealing with the goods supplied by the petitioner, it became necessary for him to obtain a clarification from the Commissioner of Commercial Taxes under Section 94 of the KVAT Act, 2003. This fact was also intimated to the assessing authority requesting to keep the assessment pending, till such clarification was issued by the Commissioner, which course, was not accepted by the assessing authority, who assessed the goods at 12.5%. Met with the said circumstances, the petitioner submitted Ext. P2 appeal before the third respondent highlighting W.P.(C) No. 12902 OF 2009 2 the relevant facts and figures as well as relevant provisions of law, where it is stated as pending. The grievance of the petitioner is that the interim order passed by the appellate authority, as borne by Ext.P4 casts an unjustified liability on the petitioner to deposit 35% of the amount due without any regard to the clarification provided by the Commissioner, which had been produced along with the appeal (produced before this Court as Ext. P6), confirming that the 'biscuits other than those sold under brand name' registered under the Trade Mark Act, 1999 would attract tax only at the rate of 4% as given under Entry 7 of the Third Schedule. 2. The learned counsel for the petitioner also placed reliance on Ext. P7 order passed by the very same appellate authority on the very next day of passing Ext. P4 order, wherein the clarification given by the Commissioner has been sought to be relied on giving the benefit to the assessee. It is the case of the petitioner that the petitioner has been dealt with in a discriminatory manner by passing Ext.P4 order on conditions, which can only be regarded as a step for augmentation of W.P.(C) No. 12902 OF 2009 3 revenue and without any regard to the actual facts and circumstances. 3. During the course of hearing, the learned Government Pleader concedes that the entire facts and circumstances have not been dealt with in Ext. P4 interim order passed by the appellate authority. 4. In the said circumstances, it is only just and proper that the appellate authority re-considers the petition for stay filed by the petitioner herein and passes a speaking order thereon. Accordingly, Ext.P4 interim order passed by the third respondent/appellate authority is set aside and the third respondent is directed to re-consider the petition for stay submitted along with Ext.P2 appeal, with specific reference to Ext.P6 clarification given by the Commissioner and also the order passed by the said respondent in a similar appeal as borne by Ext. P7; of course, in accordance with law and binding judicial precedents, if any, including the decision in Supreme Electrical Engineering(P) Ltd. vs. Commercial Tax Officer [2008(3) KLT 805]. Appropriate orders shall be passed as expeditiously W.P.(C) No. 12902 OF 2009 4 as possible, and at any rate within a period of one month. It is made clear that till such orders are passed, all further coercive proceedings against the petitioner pursuant to Ext.P4 order shall be kept in abeyance. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk