IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 10070 of 2008(W) -------------------------- PETITIONER: ------------ M/S. N.S. AGENCIES, 40/4804, NANA BUILDINGS, PAYYAPPILLY ROAD, ERNAKULAM, KOCHI - 35 REPRESENTED BY ITS PROP. N.S.SALEEM. BY ADV. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN RESPONDENTS: ------------------ 1. THE COMMERCIAL TAX OFFICER, (AUDIT ASSESSMENT), O/o. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES,. ERNAKULAM, KOCHI - 30. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 10070 of 2008 -------------------------- Dated this the 26th March, 2008 J U D G M E N T The petitioner is a Wholesale dealer of Good Knight Products and is registered under the Kerala Value Added Tax Act. One of the issues relate to the rate of tax levied on mosquito repellents like mosquito coils, mats and refills. Whereas according to the commissioner, tax is to be levied at the rate of 12.5%, the manufacturers contended that rate of tax is only 4%. Dispute in relation to the period is only prior to 30.7.2007 against the orders of assessment Exhibits P1 and P2. Petitioner has preferred Exhibits P3 and P4 appeals and P3 (a) and P4 (a) applications for stay. The appellate authority has passed an order on the stay petition. The order reads as follows: “The appeals were filed by M/s.N.S.Agencies, Nana Buildings, Payyappally Road, Ernakulam, Kochi - 35 and are directed against the orders of the Commercial Tax Officer (AA) Ernakulam for the years 2005 -2006 and 2006-2007. Appellant filed petitions for stay and Advocate V.P.Narayanan was heard. It was contended that the Assessing Authority went wrong in levying tax on 12.5% against the 4% tax conceded by the appellant on the sales of Mosquito repellant. The petitioner also requested for instalment W.P ( C) No. 10070 of 2008 2 to pay of the amount. In the circumstance the following orders. ORDER NO.SP 84/08 IN KVAT -239/08&240/08 DATED 13.2.2008 Petitioner shall remit Rs.5,00,000/- (Rupees Five lakhs) on 29.2.2008 for 2005-2006 and another Rs.5,00,000 (Rupees Five lakhs) on 15.3.2008 for 2006-2007 and the balance amount on or before 29.3.2008. Failure to remit any instalment will automatically cancel this order.” 2. Learned counsel for the petitioner submits that the order is unsustainable as much as that no amount of the disputed portion of the tax has been stayed. But it is seen that the petitioner had requested for instalment facility to pay the amount. Two of the instalments have been paid, submits the learned counsel for the petitioner. Balance amount due under Exhibits P6 and P7 revenue recovery notice is approximately Rs.6 lakhs, it is submitted. 3. I heard learned counsel for the petitioner and the learned Government Pleader. In the facts and circumstances of the case, it is appropriate that petitioner be permitted to pay the balance amount due under Exhibits P6 and P7 and give credit to the amount paid W.P ( C) No. 10070 of 2008 3 pursuant to the direction under Exhibit P5 in three equal monthly instalments commencing from 31.3.2008. If such amount is paid, as per the instalments, enforcement of Exhibit P6 and P7 shall be subject to the same. Failure on the part of petitioner to pay one of the instalments will entail withdrawal of the said facility. (V.GIRI, JUDGE) ma W.P ( C) No. 10070 of 2008 4 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER 25th May, 2007 W.P ( C) No. 10070 of 2008 5 Common issues are raised for consideration in all these writ petitions. Reference is made to the facts in Writ Petition No.4562/2008 for the sake of convenience.