IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 OP.No. 33460 of 2000(G) ----------------------- PETITIONER: ------------ M/S. MERK BUSINESS CORPORATION , COLLEGE ROAD, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, T.P. MANOJ BY ADV. SRI.V.P.SUKUMAR SRI.V.ANOOP RESPONDENTS: ------------- 1. THE SALES TAX OFFICER, FIRST CIRCLE, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., TAXES (B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY G.P. SRI. K.P. PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 57172 OF 2000 IN OP 33460 OF 2000 DISMISSED 15.2.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ASSESSMENT ORDER DATED 28.12.1998 PASSED BY THE FIRST RESPONDENT FOR 1997-98 EXT.P2 TRUE COPY OF NOTICE DATED 17.5.1999 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF THE REPLY DATED 28.5.1999 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT. P4 TRUE COPY OF PREASSESSMENT NOTICE DATED 10.3.2000 FOR THE YEAR 1998-99 EXT.P5 TRUE COPY OF REPLY DATED 27.3.2000 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF ASSESSMENT ORDER DATED 30.3.2000 PASSED BY THE FIRST RESPONDENT FOR THE YEAR 1998-99 EXT.P7 TRUE COPY OF APPEAL DATED 26.5.2000 FILED BY THE PETITIONER BEFORE THE APPELLATE ASST. COMMISSIONER, THRISSUR. EXT.P8 TRUE COPY OF ASSESSMENT ORDER DATED 29.12.89 FOR THE YEAR 1987-88 ISSUED BY THE ADDL. SALES TAX OFFICER, II CIRCLE, ERNAKULAM. EXT.P9 TRUE COPY OF ASSESSMENT ORDER DATED 10.4.1990 FOR THE YEAR 1988-89 ISSUED BY THE ADDL. SALES TAX OFFICER, II CIRCLE, ERNAKULAM. EXT.P10 TRUE COPY OF ASSESSMENT ORDER DATED 24.9.91FOR THE YEAR 1989-90 ISSUED BY THE ADDL. SALES TAX OFFICER, II CIRCLE, ERNAKULAM. EXT.P11 TRUE COPY OF ASSESSMENT ORDER DATED 6.4.93 FOR THE YEAR 1990-91 ISSUED B Y THE ADDL. SALES TAX OFFICER, II CIRCLE, ERNAKULAM. EXT.P12 TRUE COPY OF ASSESSMENT ORDER DATED 6.4.93 FOR THE YEAR 1991-92 ISSUED BY THE ADDL. SALES TAX OFFICER, II CIRCLE, ERNAKULAM. EXT.P13 TRUE COPY OF ASSESSMENT ORDER DATED 31.8.94 FOR THE YEAR 92-93 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) III SPECIAL CIRCLE I, ERNAKULAM. EXT.P14 TRUE COPY OF ASSESSMENT ORDER DATED 31.1.96 FOR THE YEAR 93-94 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) III, SPECIAL CIRCLE I, ERNAKULAM. EXT.P15 TRUE COPY OF ASSESSMENT ORDER DATED 31.1.96 FOR THE YEAR 94-95 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) III, SPECIAL CIRCLE I, ERNAKULAM. EXT.P16 TRUE COPY OF ASSESSMENT ORDER DATED 27.8.98 FOR THE YEAR 95-96 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) I, SPECIAL CIRCLE I, ERNAKULAM. EXT.P17 TRUE COPY OF ASSESSMENT ORDER DATED 25.9.98 FOR THE YEAR 96-97 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) 1, SPECIAL CIRCLE I, ERNAKULAM. 2 EXT.P18 TRUE COPY OF ASSESSMENT ORDER DATED 19.5.99 FOR THE YEAR 97-98 ISSUED B Y THE ASST. COMMISSIONER (ASSMT.) I, SPECIAL CIRCLE I, ERNAKULAM. EXT.P19TRUE COPY OF ASSESSMENT ORDER DATED 2.11.98 FOR THE YEAR 96-97 ISSUED BY THE ADDL. SALES TAX OFFICER I, IIND CIRCLE, ERNAKULAM. EXT.P20 TRUE COPY OF ASSESSMENT ORDER DATED 30.5.2000 FOR THE YEAR 97-98 ISSUED BY THE ASST. COMMISSIONER (ASSMT.) I, SPECIAL CIRCLE I, ERNAKULAM. EXT.P21 TRUE COPY OF ASSESSMENT ORDER DATED 24.1.96 FOR THE YEAR 94-95 ISSUED BY THE ADDL. SALES TAX OFFICER II, THIRD CIRCLE, ERNAKULAM. EXT.P22 TRUE COPY OF ASSESSMENT ORDER DATED 28.2.97 FOR THE YEAR 95-96 ISSUED BY THE SALES TAX OFFICER (R), 3RD CIRCLE, ERNAKULAM. EXT.P23 TRUE COPY OF ASSESSMENT ORDER DATED 27.8.98 FOR THE YEAR 96-97 ISSUED BY THE SALES TAX OFFICER, (R), 3RD CIRCLE, ERNAKULAM. EXT.P24 TRUE COPY OF ASSESSMENT ORDER DATED 7.6.99 IN STA NO. 1017/99 PASSED BY THE APPELLATE ASST. COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. EXT.P25 TRUE COPY OF LETTER DATED 10.9.98 SENT BY M/S. LN ENGINEERING WORKS (p) LTD., BOMBAY TO M/S. JNB MARKETING (I) P.LTD. EXT.P26 TRUE COPY OF ANNEXURE II OF THE CENTRAL EXCISE CLASSIFICATION. EXT.P27 TRUE COPYOF AFFIDAVIT DATED 8.8.2000 SUBMITTED BY C.V. LAZAR LAL BEFORE THE SALES TAX APPELLATE TRIBUNAL, ERNAKULAM. EXT.P28 TRUE COPY OF AFFIDAVIT DATED 3.8.2000 SUBMITTED BY C.K. SATHEENDRAN BEFORE THE SALES TAX APPELLATE TRIBUNAL, ERNAKULAM. EXT.P29 TRUE COPY OF AFFIDAVIT DATED 3.8.2000 SUBMITTED BY SMT. NIMMY DEEPAK BEFORE THE SALES TAX APPELLATE TRIBUNAL, ERNAKULAM. EXT.P29(a) TRUE COPY OF LETTER DATED 13.6.95 SENT BY THE CENTRE FOR TAXATION STUDIES TO M/S. OMANA SHOP. EXT.P30 TRUE COPY OF LETTER DATED 10.11.99 WRITTEN BY THE SECOND RESPONDENT TO THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. EXT.P31 TRUE COPY OF ORDER DATED 20.11.2000 IN CMP 55560 OF 2000 IN OP 32550 OF 2000 BY THE HON'BLE HIGH COURT OF KERALA. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 33460 OF 2000 -------------------------------------------- Dated this the 15th day of February, 2008 JUDGMENT The dispute with regard to rate of tax on products sold by the petitioner is covered against the petitioner by decision of this Court in petitioner's own case in TRC Nos. 562 and 563 of 2001. Counsel for the petitioner submitted that petitioner has filed appeal against the judgment of this Court before the Supreme Court. In the circumstances, O.P. is disposed of upholding the demand of tax at higher rate based on the decision referred above. Recovery can be made in terms of the demand. However, since petitioner has filed appeal against the judgment before the Supreme Court there will be direction to the respondents to revise the assessment in this case also in terms of the judgment of the Supreme Court without insisting of filing separate appeal before the Supreme Court against this judgment. If assessment is not completed and tax recovered, it should be completed at higher rate in terms of the judgment of this Court subject to modification if any required based on the decision of the Supreme Court as stated above. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge 2 kk