IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 4072 of 2011(H) -------------------------------- PETITIONER(S): ------------------- M/S. TVK CONSTRUCTIONS, ARAMAM, PADA NORTH, KARUNAGAPPALLY, REPRESENTED BY ITS MANAGING PARTNER, T.V.KUNJUKRISHNAN. BY ADV. SRI.S.SOMAN RESPONDENT(S): -------------------- 1. THE ASSISTANT COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM-691 001. 2. THE INTELLIGENCE OFFICER, SQUAD NO.1, COMMERCIAL TAXES, KOLLAM-691 001. 3. THE INTELLIGENCE INSPECTOR (SQUAD NO.III), COMMERCIAL TAXES AT NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.4072 of 2011 ------------------------------------------- Dated this the 10th day of February, 2011 J U D G M E N T ---------------------- By virtue of Ext.P2 order penalty was imposed against the petitioner under Section 47(6) of the Kerala Value Added Tax Act, 2003 (KVAT Act), to the tune of Rs.5,58,025/-. At the time when the goods in question were detained, the petitioner had furnished Bank guarantee to the tune of Rs.3 lakhs. In terms of Ext.P2 order the Bank Guarantee was directed to be adjusted towards penalty and the balance amount of Rs.2,58,025/- was demanded. Against Ext.P2 the petitioner had filed statutory appeal before the 1st respondent as evidenced from Ext.P3. Ext.P3(A) is the stay petition filed along with the appeal. Ext.P4, which is impugned in this writ petition, was issued by the 1st respondent, disposing the stay petition. After taking note of the fact that the amount to the tune of Rs.3 lakhs covered by the Bank Guarantee had already been realised, a conditional stay was granted with respect to the collection of the W.P.(C).4072/11 -2- balance amount insisting upon the petitioner to make payment of 50% of the said amount and also on furnishing adequate security for the balance amount 2. According to the petitioner, the condition imposed through Ext.P4 for payment of 50% of the balance amount is highly unreasonable and arbitrary. It is further contended that Ext.P4 order was issued in a mechanical manner, without applying mind of the appellate authority to the contentions raised in the appeal. Hence the petitioner seeks direction for an early disposal of the appeal itself and till then to restrain the recovery of the balance amount. 3. On a perusal of Ext.P4 it is evident that the said order is issued by the 1st respondent in a cryptic manner. None of the contentions raised in the appeal was seen adverted to by the appellate authority. On the other hand, after observing that an amount of Rs.3 lakhs has already been collected, the authority observed that the petitioner prima facie had made out a case for conditional stay. I am of the view that, in terms of the settled legal precedents, Ext.P4 could not withstand the test of sustainability. However, considering the fact that Ext.P3 appeal is pending disposal before the 1st respondent, ends of justice will W.P.(C).4072/11 -3- be achieved, if a direction is issued to the 1st respondent to consider and dispose of the same. 4. Therefore the writ petition is disposed of directing the 1st respondent to consider and dispose of Ext.P3 appeal, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 5. Till the disposal of the appeal, in modification of Ext.P4, the respondents are directed to restrain recovery of the balance amount, subject to condition of the petitioner furnishing Security Bond for the entire balance, without sureties, within a period of two weeks from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb