IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 30027 of 2010(C) -------------------------- PETITIONER: ------------------- M/S.J&J TIMBERS, 23/418, MAIN ROAD, CHALAKKUDY, THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING PARTNER SHRI C.D.JOSEPH. BY ADVS. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN SRI.V.P.NARAYANAN RESPONDENTS: -------------------- 1. THE ASSISTANT SECRETARY, KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM-682016. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-682016. 3. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES, THRISSUR-680 003. 4. THE INTELLIGENCE OFFICER (IB), ERNAKULAM, (PRESENT ADDRESS), OFFICE OF THE DEPUTY COMMISSIONER (INT.), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM AT EDAPPALLY, COCHIN-24. BY GOVERNMENT PLEADER, SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J ------------------------------------- W.P(C) No. 30027 of 2010-C -------------------------------------- Dated this the 15th day of October, 2010. J U D G M E N T Issue involved in this writ petition pertains to penalty imposed through Ext.P1 order, under Section 45A of the Kerala General Sales Tax Act (KGST Act). Appeal filed against Ext.P1 order was disposed of through Ext.P2. The appellate authority had set aside the order of penalty and remanded the matter to the 4th respondent for passing fresh orders. Against Ext.P2 further appeal was filed before the 1st respondent Tribunal. Through Ext.P4 order the second appeal was dismissed holding that there is no infirmity in the order passed by the first appellate authority. Pointing out provisions contained in Section 34 of the KGST Act, which stood as amended with effect from 23.7.2001, it is contended by the petitioner that the Deputy Commissioner (first appellate authority) has no power to remand the matter for passing fresh orders. Attention of this Court was W.P(C) No. 30027 of 2010-C 2 drawn to the provisions contained in Sub section 3 of Section 34. 2. However, pointing out the above said aspect, the petitioner had already submitted a rectification application before the first respondent Tribunal, under Section 43 of the KGST Act. The said rectification application is pending consideration and disposal before the Tribunal. Present grievance of the petitioner is that without considering pendency of Ext.P5 petition, the 4th respondent is now initiating steps for passing fresh orders in compliance with the directions contained in Ext.P2 order. 3. Considering the facts and circumstances and also the legal position as enumerated, I am of the opinion that this writ petition can be disposed of directing appellate Tribunal to expedite consideration of Ext.P5 petition and till then to restrain the 4th respondent from passing fresh orders. 4. In the result, the writ petition is hereby disposed of directing the 1st respondent Tribunal to consider and pass W.P(C) No. 30027 of 2010-C 3 orders on Ext.P5 rectification application, after affording an opportunity of hearing to the petitioner, at the earliest possible, at any rate within a period of six weeks from the date of receipt of a copy of this judgment. 5. Till such time orders are passed by the 1st respondent as directed, the 4th respondent is restrained from passing any fresh orders consequent to Ext.P2 appellate order. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No. 30027 of 2010-C 4