IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 1849 of 2009(T) ------------------------- PETITIONER(S): --------------- JAYA STORES, SABAPATHY COIL STREET CHALAI, TRIVANDRUM, REPRESENTED BY ITS PARTNER J.CHENDIL KUMAR. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE SALES TAX APPELLATE TRIBUNAL TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. THE KERALA LEGAL BENEFIT FUND TRUSTEE COMMITTEE, REPRESENTED BY ITS SECRETARY LAW (KLBF) DEPARMENT, SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER SRI. V.K. SAMSUDHEEN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1849 of 2009(T) APPENDIX Petitioners Exhibits: Ext.P1: True copy ofthe notice dated 18th January, 2005. Ext.P2: True copy of the interim order in W.P.(C) No.3395/2005 dt.1.2.2005 Ext.P3: True copy of the letter dt.4.5.2005. Ext.P4: True copy of the request dated 25.7.2006. Ext.P5: True copy of the judgment in W.P(C) No. 21572 of 2006 dt.24.9.2008 Ext.P6: True copyof the request dt.31.10.2008 Ext.P7: True copy of the order rejecting the request dt.16.12.2008 /True copy/ P.A. To Judge P.R. RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No.1849 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of July, 2009 J U D G M E N T The issue involved is in respect of the rejection of the application for refund of the additional court fee stated as remitted by the petitioner. The petitioner was assessed in respect of the assessment years 98-99, 1999-2000, 2000- 2001, 2001-2002. Challenging the assessments, the petitioner preferred statutory appeals, where interference was declined, pursuant to which, second appeal was preferred before the Tribunal. In the meantime, S.R.O.No.226/02 was issued by the Government invoking the power under Section 76 of Kerala Court Fees and Suits Valuation Act, whereby a liability was created upon the parties concerned, to remit an additional court fee to an extent of 0.5% of the disputed amount, towards the 'legal benefit fund'. Since the petitioner did not satisfy the said requirement, defect was noted in the appeal and the same was communicated as per Ext.P1. WPC.No.1849 OF 2009 : 2 : 2. Met with the said circumstances, the petitioner chose to challenge the defect notified in Ext.P1 and also the relevant amendment to the statutory provision; by filing WP(C)No. 3395/2005, where an interim order was passed directing the Tribunal not to dismiss the appeal on the ground of non payment of court fee for a period of one month. Subsequently, met with the adverse consequences, the petitioner chose to remit the entire court fee as borne by Ext.P1 and finally, the appeals were heard and they were allowed in part, where by the petitioner became eligible to get back the amount to the extent as stipulated therein. 3. It was in the meanwhile, that the challenge raised against the amendment was considered by this Court, leading to the judgment in ISMAIL VS. STATE OF KERALA AND OTHERS ( ILR 2005(4) Kerala 593 2005(3) KLT 1052), whereby the amendment was upheld by this Court, however, making it clear that it could only be 'prospective'. The conclusions arrived at by the Court have been extracted in Para 25 of the said verdict, which is extracted as given below: WPC.No.1849 OF 2009 : 3 : i. Section 76 of the Kerala Court Fees and Suits Valuation Act, 1959(Kerala Act X of 1960), is valid. ii. The fee payable as per the notification S.R.O. No.226/2002 published in the Kerala Gazette Extraordinary No. 420 dated 5-4-2002, has to be on the amount of the tax in dispute. iii. Such fee is payable only on appeals/revisions arising from assessment orders issued in relation to and from the assessment year in which the said notification was issued on 5-4-2002. iv. The Circular issued by the Chairman of the Sales Tax Appellate Tribunal will be read subject to the aforesaid modifications. v. The levy as per S.R.O.No.226/2002 shall be in terms of the declarations contained herein. It is so directed. vi. The mode of collection shall be such that it is ensured that the amounts collected as per S.R.O.No.226/2002 shall be credited to the Legal Benefit Fund, since such credit is provided for. 4. By virtue of the declaration of law as above, the 'additional court fee' is payable only on appeals/revisions arising from the assessment orders issued in relation to and from the assessment year in which the said notification was issued on 5.4.2002. In the instant case, since the assessment years were of much prior to the stipulated date, the petitioner claimed the benefit of refund and approached this Court by filing WP(C)No.21572/2006 for directing the respondent to refund the additional court fee paid by the petitioner. After hearing both the sides, this Court disposed of the said case as WPC.No.1849 OF 2009 : 4 : per Ext.P5 judgment, whereby the petitioner was permitted to approach the secretary of the Kerala Legal Benefit Fund within two months and on such event to have the claim for refund considered in accordance with law, in the light of the decision of this court in ISMAIL VS. STATE OF KERALA AND OTHERS ( ILR 2005(4) Kerala 593(2005(3)KLT 1052) which was to be finalized within another three months. Pursuant to the above verdict, Ext.P6 representation was preferred before the second respondent and after considering the same, the second respondent passed Ext.P7, turning down the claim, simply stating that the trustee committee, in the meeting held on 29.11.2008 had resolved to reject the same, in compliance with Ext.P5 judgment. Ext.P7 order passed by the second respondent, is now under challenge, mainly stating that it is contrary to the law declared by this Court vide decision reported in 2005(3)KLT 1052 and further in clear contravention of the specific direction given by this Court vide Ext.P5 judgment. 5. The second respondent has filed a counter affidavit WPC.No.1849 OF 2009 : 5 : seeking to justify Ext.P7, contenting that the petitioner was directed to pay a sum of Rs. 25 lakhs as a condition to avail the benefit of interim stay against the revenue recovery proceedings initiated against them as borne by Ext.R2(a). It is also said that the petitioner did not comply with the condition and later sought to withdraw the Writ Petition, which was declined as per Ext. R2(b) order; finally reading to Ext. R2(c) judgment, whereby this Court observed that there was no need or necessity to go into the merits of the case and the prohibitory order issued against the Tribunal from considering the Appeals was lifted, directing the Tribunal to hear the petitioner and dispose of the appeal. The contention of the second respondent is that the additional court fee was paid by the petitioner in the meanwhile voluntarily and hence that Section 70 of the 'Act' would not be applicable and in turn, no refund of the additional court fee was possible. 6. The learned counsel for the petitioner submits that, despite the specific direction given by this Court vide Ext.P5 judgment to consider the claim for refund in the light of the WPC.No.1849 OF 2009 : 6 : decision rendered by this Court in ( ILR 2005(4) Kerala 593 2005(3) KLT 1052), the second respondent paid only scant regards to the same, in so far as no reference is even made to the above verdict or the law declared by this Court, while turning down the claim. Equally relevant is to note that, nothing has been mentioned in the counter affidavit filed by the second respondent in the present Writ Petition as to the law declared by this Court in ILR 2005(4)Kerala 593. The contention is that there was no direction in Ext.P5 Judgment to refund the additional court fee already paid. The said statement only reflects the poor sense of understanding of the second respondent, in so far as, the direction given was to consider the claim in the light of the law declared by this Court in ILR 2005(4) Kerala 593. 7. The law declared by this Court has been stated in crystal-clear terms under the head 'Conclusion' extracted in Para 25 of the verdict, where it is categorically stated under 'clause (iii)' that such fee is payable only on appeal/revision arising from assessment orders issued in relation to and from WPC.No.1849 OF 2009 : 7 : the assessment year in which the said notification was issued on 5.4.2002. The question is whether, the second respondent while passing Ext.P7 order, allegedly in compliance with the direction in Ext.P5, had tried to ascertain whether the assessment order in question was before the crucial date ie, of 5.4.2002 or thereafter. The non consideration of the said factual requirement by the second respondent, despite the specific direction given by this Court and the law declared on the point, shows the total non-application of mind on the part of the second respondent. Obviously since the assessment year involved in the present case is prior to 5.4.2002, Ext.P7 passed by the second respondent is contrary to the law declared by this Court in ( ILR 2005(4) Kerala 593 2005(3) KLT 1052) . 8. Learned counsel for the petitioner also placed reliance on the decision rendered by the Apex Court in D.CAWASJI & CO., ETC.ECT. VS.THE STATE OF MYSORE & ANR ( 1975(2)SCR 511) stating that the period of limitation, if any, shall be 3 years from the date of passing the judgment, WPC.No.1849 OF 2009 : 8 : declaring the correct law. Obviously the sequence of events as given by the Writ petitioner shows that the petitioner was disputing the liability to remit the additional court fee for entertaining the appeals. When defect was noted by the Tribunal, vide Ext.P1, the petitioner approached this Court and obtained Ext.P2 interim order. But unable to meet the condition imposed, he chose to remit the entire court fee and it was after considering the turn of events till date, that this Court lifted the prohibitory order and directed the Tribunal to consider the Appeal on merits, as borne by Ext.R2(c). On finalizaiton of the Appeal, the petitioner approached this Court by filing WP(C) 21572/06 for refunding the Additional court fee paid; which led to Ext.P5 judgment, whereby the matter was directed to be considered in accordance with law, permitting the petitioner to approach the Secretary of the Legal Benefit Fund. 9. Learned Government Pleader submits now, that neither the Government nor the Secretary to the Legal Benefit Fund was a party to Ext.P5. But this is no more open to challenge, of the fact that there was no such case earlier in WPC.No.1849 OF 2009 : 9 : view and no challenge was raised against Ext.P5 verdict in this regard, which on the other hand was acted upon by the Secretary to the Legal benefit Fund, leading to Ext.P7 order. This being the position, the attitude and approach displayed by the second respondent approbating and reprobating simultaneously, can't but be deprecated. 10. In the light of the observations made above, it is declared that the petitioner is entitled to get the benefit of refund of the Additional Court Fee paid and Ext.P7 is set aside accordingly. The second respondent is directed to refund the amount paid by the petitioner as additional court fee, forming the subject matter of Ext.P7, as expeditiously as possible; at any rate within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed; no cost. (P.R. RAMACHANDRA MENON, JUDGE) jma