IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 23845 of 2009(A) -------------------------- PETITIONER: --------------- 00000000000000000000000 INDIAN OIL CORPORATION LTD., PANAMPILLY NAGAR, ERNAKULAM, COCHIN - 682 036, REP. BY J.BOOMINATHAN, MANAGER (FINANCE) BY ADV. SRI.JOSE JOSEPH RESPONDENTS: --------------- 1. THE FAST TRACK TEAM, COMMERCIAL TAXES DEPARTMENT, ERNAKULAM. REP. BY ASST.COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI - 682 015. 2. THE ASST.COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE II, ERNAKULAM, KOCHI - 682 015. 3. THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDL.BENCH ERNAKULAM, THEVARA, ERNAKULAM, REP. BY ITS ASST.SECRETARY. 4. THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 5. THE INSPECTING ASST.COMMISSIONER, (AUTHORISED OFFICER), COMMERCIAL TAXES, CIVIL STATION, KAKKANAD, ERNAKULAM. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 23845 OF 2009 ......................................................................... Dated this the 20th August, 2009 J U D G M E N T The petitioner has approached this Court with the following prayers : “(i) Call for the records of the case leading to Exts. P7 & P8 orders and quash the same by the issue of a writ of certiorari or any other appropriate writ or order. (ii) declare that Sec.17D of the KGST Act inserted by Kerala Finance Act, 2007 as ultra vires and invalid or in the alternative read down the provision declaring that it cannot be invoked for completing assessments under the KGST Act or CST Act relating to any period prior to the introduction of the provision. (iii) at the least, declare that Sec.17D(5) of the KGST Act is ultra vires and invalid being confiscatory and arbitrary. (iv) Call for the records of the case relating to Ext. P15 notice and quash the same by the issue of a writ of certiorari or other writ or W.P.(C) No. 23845 OF 2009 2 order and issue a writ of mandamus or any other appropriate writ or order restraining the 3rd respondent from rejecting Exts.P10 & P11 appeals for non payment of the entire tax assessed and directing the 3rd respondent to admit Exts. P10 & P11 appeals and dispose of it on merit without requiring to pay the entire tax assessed. (v) call for the records of the case relating to Exts. P16 & P17 notices and quash the same by the issue of a writ of certiorari or any other appropriate writ or order. (vi) pass such other orders, directions or writs as may be prayed for and this Hon'ble may deem fit and proper in the facts and circumstances of the case. “ 2. The basic challenge in the present Writ Petition is against Section 17D of the KGST Act, inserted by the Kerala Finance Act, 2007 and also against the specific stipulation under sub section 5 of Section 17D, whereby it is made mandatory to deposit the amount assessed in the proceedings under Section 17D, for entertaining the appeal. With this intent, the W.P.(C) No. 23845 OF 2009 3 constitutional validity of the said provisions has been subjected to challenge, seeking to declare the same as 'ultra vires' of the Constitution. The petitioner has also prayed for consequential reliefs. 3. Heard the learned Counsel for the petitioner as well as the learned Government Pleader for the respondents. 4. Obviously, the prayers made by the petitioner, particularly at Sl.Nos. (iv) and (v) can be granted only if the prayers at Sl.Nos. (ii) and (iii), declaring the above provisions as 'ultra vires' to the Constitution, are allowed. The 'vires' of the said provision had come up for consideration before this Court earlier and the constitutional validity has already been upheld as per the decision in Alikunhi Haji.V.C. & Sons vs. State of Kerala and others [(2008) 16 KTR 206 (Ker.)]. This Court had occasion again to consider the scope of the very same provision as per the judgment dated 12.01.2009 in W.P.(C) No.15659 of 2008 ( in Viani Papers vs. Fast Track Team [2008(2) KLT 511] and the correct legal position has been asserted and reiterated therein as well. W.P.(C) No. 23845 OF 2009 4 5. This being the position, this Court does not find any reason to take a different view and as such, interference is declined. The Writ Petition is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk