IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 25428 of 2011(C) -------------------------- PETITIONER: ----------------- BHARAT PETROLEUM CORPORATION LTD., IST FLOOR, PETRONET CCK LTD., IRIMPANAM, ERNAKULAM-682309, REP. BY ITS MANAGER (FINANCE) MRS.N.LAKSHMI. BY ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE SRI.SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENT(S): ------------------------ 1. ASSISTANT COMMISSIONER, SPECIAL CIRCLE II, COMMERCIAL TAXES, ERNAKULAM-682015. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682015. 3. INSPECTING ASSISTANT COMMISSIONER (RECOVERY), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682024. BY SPL.GOVT.PLEADER(TAXES) SHRI SOJAN JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2011, ALONG WITH W.P.(C)No.25425/11, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.25428/11 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE IST RESPONDENT (AY-2004-2005(KGST))dt.31.12.10. EXT.P1(A) TRUE COPY OF THE RECTIFICATION ORDER (AY-2004-2005(KGST) dt.22.3.11. EXT.P1(B) TRUE COPY OF THE RECTIFICATION ORDER (AY-2004-2005(KGST) dt.9.5.11. EXT.P2 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE IST RESPONDENT (AY-2004-2005(CST DT.31.12.10. EXT.P2(A) TRUE COPY OF THE RECTIFICATION ORDER (AY-04-05(CST)DT,7,4,11. EXT.P2(B) TRUE COPY OF THE RECTIFICATION ORDER (AY-04-05(CST)DT.9.5.11. EXT.P3 TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT (AY-04-05(KGST)DT.29.4.11. EXT.P3(A) TRUE COPY OF THE STAY PETITIONE FILED BEFORE THE 2ND RESPONDENT (AY-04-05(KGST)DT.29.4.11. EXT.P4 TRUE COPY OF THE APPEAL FILED BFORE THE 2ND RESPONDENT (AY-04-05(CST)DT.29.4.11. EXT.P5 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT UNDER SEC. 7 OF THE REVENUE RECOVERY ACT DT.14.6.11. EXT.P6 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT UNDER SEC.7 OF THE REVENUE RECOVERY ACT DT.14.6.11. EXT.P7 TRUE COPY OF THE CONDITIONAL ORDER OF STAY PASSED BY THE 2ND RESPONDENT (AY-04-05(KGST)DT.12.8.11. EXT.P8 TRUE COPY OF THE CONDITIONAL ORDER OF STAY PASSED BY THE 2ND RESPONDENT (AY-04-05-(CST)DT.18.8.11. EXT.P9 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN WPC.176/2010 DT.10.5.10. RESPONDENTS' EXHIBITS : NIL TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)Nos.25425 & 25428 of 2011 -------------------------------------------------- DATED THIS THE 28th DAY OF SEPTEMBER, 2011 J U D G M E N T In both these Writ Petitions, the petitioners are challenging the interim order passed by the Deputy Commissioner(Appeals) directing the petitioner to remit 25% of the total amount due and furnish adequate security for the balance amount as a condition for staying the recovery, pending the appeals. 2. Heard the learned Senior Counsel for the petitioner and the learned Government Pleader. 3. The learned Senior Counsel for the petitioner submitted that in the light of the principles laid down by the Apex Court in Bharat Petroleum Corp.Ltd. v. Commissioner of Sales Tax[(2008)17 VST 162(SC)] , it can be seen that a direction to deposit 25% of the demand cannot be supported. My attention was also invited to the fact that W.P.(C)No.16794/2010 filed seeking for a declaration that public sector undertakings having substantially positive worth is entitled to blanket order of stay has been finally heard. W.P.(C)Nos.25425 & 25428/11 -2- 4. The learned Government Pleader while opposing the submissions of the petitioner submitted that the 2nd respondent has passed the order in the light of various facts which have emerged and the same cannot be said to be illegal for any reason. 5. In the decision relied upon by the learned Senior Counsel for the petitioner in (2008)17 VST 162(SC), Bharat Petroleum Corporation, the order under challenge was an interim order passed by the Commissioner of Commercial Taxes, Cuttack, Orissa. While considering the matter on merits, the Apex Court held as follows: “ Normally, this court does not interfere in interim matters particularly when the matter concerns levy of tax. However, this is a peculiar case for two reasons, i.e., BPCL Ltd. is a public sector company in a priority sector which is obliged to sell kerosene via PDS route. The demand is for Rs.1.34 crores(approx.) and, in the circumstances, we are of the view that to call upon BPCL at this stage to deposit a huge amount of Rs.1.34 crores (approx.) would have a serious effect on the PDS sales. On the other hand, we are satisfied that BPCL is a substantial company. It is in a sound financial position and it can discharge its liability at a later date, if need be.” 6. I find force in the submission made by the learned Senior Counsel for the petitioner that in the light of the financial W.P.(C)Nos.25425 & 25428/11 -3- position of the petitioners, the condition imposed for granting stay cannot be supported. It is submitted that 25% directed to be deposited itself will run into crores of rupees. The petitioner is a public sector company of the Government of India with Navaratna status. In the light of the discussion above, it will be only proper that the appeals are heard at the earliest. Therefore, there will be a direction to the 2nd respondent to dispose of the appeals within a period of six weeks from the date of receipt of a copy of this judgment. The directions issued as per the interim orders are modified accordingly relieving the petitioners from the conditions imposed and till the disposal of the appeals, the recovery proceedings will be kept in abeyance. The Writ Petitions are disposed of as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn