IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 25094 of 2000(K) --------------------------------- PETITIONER: ------------------- T .K.SASIDHARAN, S/O. KUNHIKRISHNAN, THANDASSERY HOUSE, VADAKKUMMURY VILLAGE. 2. V.G.SATHEESH KUMAR, S/O.GOVINDAN, VALIYAPARAMBIL HOUSE, THRISSUR. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ----------------------- 1. THE ASSISTANT EXCISE COMMISSIONER, TRICHUR. 2. THE GOVT. OF KERALA REP.BY SECRETARY, TAXES (G) DEPARTMENT, TRIVANDRUM. 3. THE TAHSILDAR (RR), TRICHUR. BY GOVERNMENT PLEADER SRI.S.DILEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.25094/2000 ORDER ON CMP. NO.42294/2000 IN OP. NO.25094/2000 DISMISSED 19.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE STATEMENT OF ACCOUNT OF THE IST RESPONDENT IN RELATION TO THE PETITIOENRS SHOP SHOWING THAT AS ON 31.3.94 RS. 24.64,911/- IS THE ARREARS. EXT.P2:- COPY OF THE STATEMENT SHOWING THE DETAILS OF DCB IN RESPECT OF THE PETITIONERS. EXT.P3:- COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT. EXT.P4:- COPY OF THE AMENDMENT BY ADDING RULE 25(A) DT. 3.6.2000. EXT.P5:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT DT. 7.7.2000. EXT.P6:- COPY OF THE ORDER OF THE SIT RESPONDENT DT. 10.8.2000. EXT.P7:- COPY OF THE STATEMENT SHOWING INTEREST DUE AS ON 31.8.2000. EXT.P8:- COPY OF THE STATEMENT SHOWING THE TOTAL AMOUNT PAID BY THE PETITIONER FROM 18.3.97. RESPONDENT'S EXHIBITS EXT.R2:- COPY OF THE DCB STATEMENT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.25094 of 2000-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2008. JUDGMENT The petitioners have bid in auction certain abkari shops in Thrissur range during the year 1993-94. Since the entire kist amount was not remitted by them, they remained defaulters as on 31.3.1994. As on that date, the principal amount due from the petitioners is Rs.24,08,769/- and interest at Rs.56,142/-. It is stated that they started remitting amounts from April 1994 and by 27.10.1997 the total amount due to the tune of Rs.24,64,911/- was paid by them. Ext.P1 is the statement of accounts produced by the petitioners. The statement Ext.P2 shows the details of payments made by the petitioners on various dates. 2. The claim raised by the petitioners herein is based on Rule 25(A) of the Kerala Abkari Shops (Disposal in Auction) Rules which was introduced as per Ext.P4. As per the amendment defaulters like the petitioners are entitled for reduction of 75% of the interest if the stipulations provided under the amended clause applies to them. The petitioners have got a case that as the entire arrears were paid prior to 31.8.2000, they are entitled for the reduction of interest as envisaged in the OP 25094/2000 -2- amended provision. The petitioners also filed an application, Ext.P5 seeking the benefit of the said amended clause. But ultimately, by Ext.P6 they were asked to remit an amount of Rs.11,92,531/- being the balance kist amount along with 25% interest. This amount was directed to be paid before 31.8.2000. It is at that stage this original petition was filed. In C.M.P.No.42294/2000 this court passed an interim order directing the petitioner to furnish a bank guarantee for the sum of Rs.12,84,719/- which is mentioned in Ext.P6, on or before 31.8.2000. It is reported by the learned counsel for the petitioners that the bank guarantee was thus furnished also. 3. The question is whether the amount as shown in Ext.P6 is liable to be paid by the petitioners. The petitioners contend that in Ext.P6, no details have been furnished and the adjustment of the amounts paid by the petitioners or other relevant factors have not been explained. It is also pointed out that nothing is discernible from the order as to how the balance kist amount was arrived at. The petitioners also submit that the authority has not bestowed its attention to the payments already made by the petitioners from time to time. It is contended that at any rate, the direction in Ext.P6 that they should remit the amount shown therein, is unsupportable in the sense that no further amount is due from them. 4. In the counter affidavit filed by the second respondent, it is OP 25094/2000 -3- pointed out that the adjustment of the amounts paid by the petitioners is governed by Rule 6(25) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, according to which, the amount remitted by a defaulter towards arrears shall be adjusted towards the interest due from him in the first instance and the balance, if any, shall be credited towards the principal amount. Hence, all the amounts remitted by the petitioners were first given credit towards arrears then and there as per the above said rules. Ext.R2 is the detailed statement showing the said adjustments. 5. In the light of the dispute raised by the petitioners and as the authority has not given any detailed reasons in Ext.P6, I am of the view that the matter has to be reconsidered by the competent authority. The calculation statement now produced as Ext.R2 is not part of Ext.P6. Therefore, Ext.P6 can only be treated as a notice and the petitioners will be entitled to file detailed objections to the balance amount claimed including those shown in Ext.R2. To enable the first respondent to redetermine the matter, as already noticed, Ext.P6 will be treated as a notice only. The detailed objections shall be filed within a period of six weeks from the date of receipt of a copy of this judgment. The first respondent shall consider the objections on the merits including the claim for benefit of Rule 25A and pass an order as to how the adjustments of the payments made by the OP 25094/2000 -4- petitioners was made, after hearing the petitioners or their representative. Final orders shall be communicated to the petitioner within a further period of two months thereof. If it is ultimately found that no further amount is due, then appropriate orders will be passed as regards the bank guarantee furnished by the petitioners. The original petition is disposed of as above. (T.R. Ramachandran Nair, Judge.) kav/ OP 25094/2000 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.25094 of 2000 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 19th March, 2008.