IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 OP.No. 11478 of 2001(N) ----------------------- PETITIONER: ------------ SHAAN STEELS, PANNIYANKARA, CALICUT, REPRESENTED BY ITS MANAGING PARTNER, SMT. KHALIDA BASHA. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.R.MURALIDHARAN (AROOR) RESPONDENTS: ------------- 1. ASST. COMMISSIONER (ASSMT.), SPL. CIRCLE I, KOZHIKODE. 2. DEPUTY COMMISSIONER, COMMERCIAL TAXES, KOZHIKODE. 3. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. TEKCHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 18178 OF 2001 IN OP 11478 OF 2001 DISMISSED 23.5.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 18.11.97 FOR THE YEAR 1994-95 EXT.P2 DO.DO. DATED 30.4.1998 FOR THE YEAR 1995-96 EXT.P3 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 27.9.1999 EXT.P4 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DATED 1.11.1999 FOR THE YEAR 1994-95 EXT.P5 STRUE DO.DO.DO. 1995-96 EXT.P6 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT IN STRP 170 AND 170A /1999 (R3-56099 & 56100/99 DATED 7.11.2000 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 11478 OF 2001 -------------------------------------------- Dated this the 23rd day of May, 2008 JUDGMENT Petitioner is challenging Ext.P6 order issued by the Commissioner of Commercial Taxes upholding penalty reduced in first revision by the Deputy Commissioner for the assessment years 1994-95 and 1995-96. Petitioner's case is that concessional rate of tax is claimed against Form 18 issued by purchasers. Counsel has relied on the decision of this Court in STATE OF KERALA V. ENNARI ELECTRONICS CAPACITORS COMPONENTS LTD.,11 KTR 520 and contended that petitioner is entitled to concessional rate of tax because according to petitioner, the purchasers though were liable to pay tax did not pay tax by virtue of exemption available to them. I do not think petitioner's liability for payment of differential tax can be considered in this case because assessments at higher rate of tax are stated to be pending in appeal. O.P. is therefore disposed of directing the first respondent to revoke the penalty if differential tax demanded is cancelled in appeal. However, if appeal is dismissed, then the penalty 2 reduced by the Deputy Commissioner in first revision and confirmed by the Commissioner in second revision will stand confirmed. It will be open to the petitioner to settle the liability under OTS scheme. (C.N. RAMACHANDRAN NAIR) Judge kk 3