IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WA.No. 553 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.28418/2004 Dated 21/11/2007 .................... APPELLANT(S): PETITIONER ---------------------------------------- M/S.CALICUT GRANITES (PVT) LTD., VALLIKKAD, KANNANVETTIKKAVU, MALAPPURAM DISTRICT, REPRESENTED BY M.C.MAYIN HAJI, MANAGING DIRECTOR. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S)/RESPONDENTS: ----------------------------------------------- 1. INTELLIGENCE OFFICER (INVESTIGATION BRANCH), DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVT.PLEADER SRI.K.P.PRADEEP THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 553 OF 2008 =================== Dated this the 10th day of March, 2011 J U D G M E N T Antony Dominic, J. The appellant is the owner of a Metal Crusher unit. Being an assessee under the Kerala General Sales Tax Act, the appellant had opted for payment of tax under the compounded rate as provided under Section 7 of the KGST Act. This benefit was availed declaring that there were only two secondary units. 2. It is seen from the records that, subsequently on 2/2/1999, there was an inspection in the premises of the appellant, when it was found that there were four primary units. This led to the issuance of Ext.P2 notice proposing penalty under Section 45A. To the show cause notice, the appellant filed Ext.P3 reply. The matter was considered and by Ext.P4, penalty was imposed on the appellant. 3. Aggrieved by the order imposing penalty, appellant filed revision. The first Revisional Authority passed Ext.P5 order reducing the penalty to 25%. In a suo motu revision initiated by WA No.553/2008 : 2 : the Commissioner of Commercial Taxes, Ext.P8 order was passed cancelling Ext.P5 and restoring Ext.P4 order. The appellant challenged these orders by filing WP(C) No. 28418/2004. The learned Single Judge by judgment dated 21/11/2007 dismissed the writ petition. It is aggrieved by the judgment, the appellant has come up in appeal. 4. We have heard the learned counsel for the appellant and also the learned Government Pleader. 5. The main contention raised by the appellant was that the finding of the Second Revisional Authority that they were operating four secondary machines is factually incorrect. It is stated that, only two machines were in operation, and therefore, the basis on which Ext.P8 order has been rendered is incorrect and illegal. 6. First of all, we should say that going by the provisions of the Act, tax at compounded rate is payable on the number of machines installed. Therefore, the appellant having admitted the WA No.553/2008 : 3 : existence of the four machines ought to have declared the same, when he opted for paying tax at compounded rate. Thus, there can be no doubt that the appellant did not declare all the machines and if so, the finding of suppression on the part of the appellant is unassailable. Further, the finding of the learned Judge that even if the machines were alternatively used with the help of generators, that did not relieve the appellant from the liability is also unassailable. 7. In the light of the above, we do not find any illegality in the judgment of the learned Single Judge. Writ appeal fails and it is dismissed. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp