IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 31324 of 2010(M) ---------------------------------- PETITIONER(S): ------------------- O.R.GOPALAKRISHNAN, PROPRIETOR, SAKTHI AUTO FUELS, BHARATH PETROLEUM CORPORATION DEALERS, MAIN ROAD, CHITTUR, PALAKKAD DIST. BY ADVS. SRI.T.K.CHINNAN SRI.K.N.PADMAKUMAR RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, CHITTUR, PALAKKAD- PIN 678 101. 3. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES COMMISSIONERATE, THIRUVANANTHAPURAM-695 001. BY GOVT. PLEADER SRI.SHAMSUDDIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.31324 of 2010-M ---------------------------------------- Dated this the 30th day of November, 2010. J U D G M E N T Issue involved in this writ petition pertains to refund of additional registration fee collected from the petitioner, pursuant to amendment brought to the Kerala General Sales Tax Act 1963 (KGST Act), under Section 14(1), 14(1A) and 14(5). A Division Bench of this Court in the decision reported in Elias & Company V Sales Tax Officer (2004 (1) KLT 245) had declared that Section 14(1A) of the KGST Act is unconstitutional and it is beyond the legislative competence. In the said judgment, this Court directed that, the additional registration fee if any paid by the petitioners, who have approached this Court questioning correctness of levy, shall be refunded. 2. According to the petitioner he is a retail dealer of petroleum products and is a member of the association, M/s. All Kerala Federation of Petroleum Traders. The said association had also filed O.P.No.11471 of 1993. But the W.P(C) No.31324 of 2010-M 2 request for refund made by the petitioner was declined on the basis of Ext.P4 order, informing that the Commissioner of Commercial Taxes had directed to withhold refund of renewal fee till the disposal of the SLP pending before the Hon'ble Supreme Court. It is stated that against the decision of this Court in Elias & Company V. Sales Tax Officer (cited supra), the State Government had approached the Hon'ble Supreme Court and SLP(C) No.20409 to 20422/2004 is pending disposal. 3. In a statement filed on behalf of the 2nd respondent it is contended that the refund could not be effected with respect to the petitioner, because he had not approached this Court questioning correctness of the levy and it is further stated that the matter is now pending disposal before the Hon'ble Supreme Court in various SLPs filed, including one against O.P.No.11471 of 1993. 4. It is evident that, in the judgment in O.P.No.11471 of 1993 this court observed that, as far as refund of the fee is concerned, it will be applicable only to the petitioners W.P(C) No.31324 of 2010-M 3 who had approached this Court, questioning correctness of the levy. It is evident that the 1st petitioner in the said case is the association. There is no dispute that the petitioner is a member of the said association. Further it is evident in Ext.P5 that a similarly situated person, who is a member of the above said association was allowed refund on the basis of the judgment in O.P.No.11471 of 1993. 5. Under such circumstances, I am of the view that there is no justification in denying the same benefit to the petitioner. However, refund if any made will be subject to final outcome of the decision of the Hon'ble Supreme Court and for which the petitioner can be directed to furnish Security Bond. 6. Therefore the writ petition is disposed of directing the 2nd respondent to effect refund of renewal fee if any paid by the petitioner on the basis of Section 14(1A), subject to condition of the petitioner furnishing a Security Bond for the said amount, undertaking to make payment of the amount, if ultimately the validity of the provisions is upheld W.P(C) No.31324 of 2010-M 4 by the Hon'ble Supreme Court. 7. The refund in this regard shall be effected without any further delay, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM JUDGE ab