IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 19242 of 2008(N) -------------------------- PETITIONER: ----------------- ALFAB MARKETING SYSTEMS, TRANS SQUARE COMMERCIAL COMPLEX KAKKANAD, KOCHI - 30 REPRESENTED BY ITS PROPRIETOR. ABY ELIAS. BY ADV. SMT.S.K.DEVI RESPONDENTS: --------------------- 1. THE COMMISSIONER, DEPT. OF COMMERCIAL TAXES, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. 2. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, II CIRCLE, KALAMASSERY AT PALARIVATTOM. BY GOVERNMENT PLEADER SRI. C.K. GOVINDAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.19242 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2008 JUDGMENT This writ petition is filed under Article 226 of the Constitution seeking certiorari to quash Ext.P1 and for a direction to consider and pass orders on Ext.P4. 2. Briefly put the case of the petitioner is as follows: Petitioner is an assessee under the Kerala Value Added Tax Act on the files of the second respondent. Aluminium panel sheet is the product dealt with by the petitioner. According to the petitioner, Excise duty is levied under HSN Code 7606 11 90. The HSN Code 7606 comes under the third schedule and under the Rule the commodities which are given four digit HSN number include all those commodities coming under the heading HSN. However, the first respondent Commissioner has by Ext.P1 clarified that aluminium panel sheet comes under Sl. No.103 to SRO 82/2006 and hence taxable at 12.5%. Exts.P2 and P3 are the invoices produced in support of the case of the petitioner. Petitioner has also moved a petition purporting to be under Section 66 of the Kerala Value Added Tax Act, where the petitioner is invoking the power under the said Section to rectify Ext.P1 order. WPC.19242/2008. 2 3. Heard counsel for the petitioner and the learned Government Pleader. 4. Learned Government points out that the petitioner has an effective remedy in the form of appeal under Section 94 of the Kerala Value Added Tax Act. In support of this contention, he drew assistance from the decision of a learned Single judge of this court reported in Abraham v. Commissioner of Commercial Taxes (2002(2) K.L.T. 121), wherein overruling the contention of the petitioner therein that an appeal under Section 59A of the KGST Act will lie only at the instance of a person who sought the clarification and held that any person aggrieved can file appeal. 5. Learned counsel for the petitioner drew my attention to the decision of a Division Bench of this court in O.T.A. 7 of 2007, wherein the Division Bench took the view that in an appeal filed apparently under Section 94 of the KVAT Act the appellant ought to have approached the concerned authority for appropriate clarification by producing enough and sufficient material and even without doing so the appellant has rushed to this court. What the petitioner has filed as Ext.P4 is a petition under Section 66 of the KVAT Act seeking rectification of the order. Even going by the Division Bench decision relied on by the learned counsel for the petitioner, WPC.19242/2008. 3 what the Division Bench has held is that in the case of an error, the remedy of the petitioner is to approach the appropriate authority with appropriate materials so as to persuade the authority to hold the point in his favour. At any rate, it would appear to me that the writ petition filed under Article 226 may not be appropriate. In such circumstances, the writ petition is dismissed without prejudice to the right of the petitioner to avail whichever remedy he chooses to pursue and he is advised to do. (K.M. JOSEPH, JUDGE) sb