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. 31630 of 2010(C) ------------------------- PETITIONER : ------------------ HIGHTEMP INDUSTRIES, P.B. NO.5, SANSKRIT COLLEGE ROAD, TRIPUNITHURA, KOCHI-682301, REPRESENTED BY ITS PARTNER SRI.C.B. VENUGOPAL. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): ----------------------- 1. INTELLIGENCE OFFICER (I.B.), COMMERCIAL TAXES, EDAPPALLY, ERNAKULAM-682025. 2. COMMISSIONER, COMMERCIAL TAXES, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM-695033. R1 & R2 BY GOVT. 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: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.31630 of 2010 ------------------------------------------- Dated this the 15th day of October, 2010 J U D G M E N T ---------------------- Aggrieved by order imposing penalty under Section 67(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) the petitioner had approached the statutory appellate authority, Deputy Commissioner (Appeals). Through Ext.P3 order the appellate authority had set aside the order imposing penalty and remitted the matter back to the 1st respondent for passing fresh orders, after giving liberty to the petitioner to produce all Books of Accounts and records before that authority. The issue in dispute pertains to rate of tax applicable with respect to “Bogie Type Electrically Heated Ageing Oven”. According to the petitioner the commodity will fall under Entry 83 (59) of the IIIrd schedule of the Act. But penalty was imposed on the premise that the above said commodity will come under the Entry applicable to 'Home Appliances'. 2. In this context the petitioner had submitted an application before the 2nd respondent, the Commissioner of W.P.(C).31630/10-C -2- Commercial Taxes, seeking clarification under Section 94 of the KVAT Act. Ext.P4 petition filed in this regard is pending consideration and disposal. Grievance of the petitioner is that the 1st respondent has now issued Ext.P5 notice calling for objections in finalising the penalty afresh. It is contended that if modified orders are issued by the 1st respondent without waiting for the clarification from the 2nd respondent, as sought for in Ext.P4 petition, that will cause severe prejudice. Hence the petitioner is seeking directions for disposal of Ext.P4 and till then to keep in abeyance proceedings for finalisation of the penalty order. 3. Heard learned Government Pleader also. I am of the view that the limited prayer sought for in this writ petition can be allowed. 4. Under the above circumstances, the writ petition is disposed of directing the 2nd respondent to consider Ext.P4 and to take a decision thereof after affording an opportunity of hearing to the petitioner as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 5. Till such time the 2nd respondent takes a decision on Ext.P4 petition, the proceedings for imposition of penalty, W.P.(C).31630/10-C -3- which is now initiated pursuant to Ext.P5 notice, shall be kept in abeyance by the 1st respondent. The petitioner will produce a copy of this judgment before the authorities concerned. C.K.ABDUL REHIM, JUDGE. okb