IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 WP(C).No. 37007 of 2010(A) -------------------------------------- PETITIONER: ------------------- RITA ANTU,KACHAPPILLY SALES CORPORATION, CHAMPANOOR,ANGAMALY. BY ADVS. SRI.ISSAC M.PERUMPILLIL, SRI.TOMY EAPEN, SRI.JIJO PAUL KALLOOKKARAN. RESPONDENTS: ------------------------ 1. THE COMMERCIAL TAX OFFICER-1, ANGAMALY-683 572. 2. THE DEPUTY COMMISSIONER(APPEALS), ON DEPUTATION,O/O.THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES,COMMERCIAL TAX COMPLEX, PERUMANOOR,KOCHI-682 015. R1 & R2 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.37007 of 2010 ------------------------------------------- Dated this the 14th day of December, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P16 interim order issued by the 2nd respondent. Against Ext.P2 to P4 orders of assessments completed with respect to the years 2006-'07, 2007-'08 and 2008-'09, the petitioner had preferred Ext.P9 to P11 appeals before the 2nd respondent. Along with the appeals the petitioner had filed stay petitions which were disposed of by the appellate authority through Ext.P16 common order. A conditional stay was granted insisting upon for payment of 25% of the total amount in demand. According to the petitioner, insistence for payment of 25% was made in a mechanical manner without proper application of mind by the appellate authority. It is contended that none of the grounds raised in the appeal petitions as well as none of the contentions raised at the time of hearing has been properly adverted to by the 2nd respondent. 2. It is contended that the issue involved in the appeals pertain to rate of tax applicable with respect to the product dealt with by the petitioner, viz., “Danthadhavana Choornam”. The disputed question is as to whether the product is an W.P.(C).37007/10 -2- Ayurvedic preparation or it is a medicine. On the basis of Finance Act, 2010 it is contended that the product will fall under Entry 5A of the 3rd schedule which is taxable under 4% with effect from 1.4.2005. It is also contended that with respect to the years 2007-'08 and 2008-'09 the petitioner claimed exemption since the input tax paid will be higher than the output tax liable. However, the assessing authority had rejected such contentions on the basis of the fact that the matter is pending consideration before the Hon'ble Supreme Court in SLP (civil) No:6716 & 6717 of 2010. 3. It is noticed that, eventhough the appellate authority had conducted a personal hearing while disposing the interim applications and eventhough the petitioner had elaborately raised legal contentions based on the dispute regarding rate of tax applicable, no consideration of such contentions is reflected in Ext.P16 order. It is evident that the appellate authority had illustrated such contentions. But he had failed to consider merits of such contentions and no specific finding is arrived with respect to sustainability of such grounds. 4. Under the above circumstances I am of the view that Ext.P16 is not an order sustainable in the eye of law. However, I am not intending to remit the matter back to the 2nd respondent for passing fresh order, in view of the fact that the appeal is W.P.(C).37007/10 -3- pending consideration before that authority for quite long time and that interest of justice will be served by directing that authority to consider and pass orders on the appeal itself, within a time frame. 5. Therefore the writ petition is disposed of quashing Ext.P16 order and directing the 2nd respondent to consider and pass orders on Ext.P9 to P11 appeals, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within two months from the date of receipt of a copy of this judgment. 6. Till such time orders are passed by the 2nd respondent as directed above, recovery of amounts covered under Ext.P2 to P4 orders of assessments shall be kept in abeyance, subject to condition of the petitioner furnishing Security Bond for the amounts in dispute within a period of two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb