IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WA.No. 1684 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.3500/2007 Dated 08/03/2007 .................... APPELLANT(S): PETITIONER: ------------------------- THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCER'S UNION LTD., H.O. PERINGALAM, KOZHIKODE-673 571, REPRESENTED BY THE MANAGING DIRECTOR. BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENTS: RESPONDENTS: --------------------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE INSPECTING ASST.COMMISSIONER, SALES TAX CHECK POST, MANJESHWARAM. 3. SALES TAX OFFICER, KOZHIKODE. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A. NO: 1684 OF 2007 ----------------------------------------------------------------------------------- Dated this the 26th February, 2009. JUDGMENT RAMACHANDRAN NAIR, J. The appellant along with other dealers challenged Section 47 (16A) of the KVAT Act and circulars 50 and 53/2006 issued by the Commissioner of Commercial Taxes. The learned Single Judge dismissed the batch cases upholding the constitutional validity of the impugned provision of the statute. However, we find the case of the appellant is different from other dealers because appellant is not a dealer in generator sets. On the other hand the generator set brought was for use as capital goods in appellant's business of processing and selling of milk. In interim orders this court directed release of the generator set without payment of tax in advance. Since appellant is not engaged in any more import of generator sets there is no reason for the appellant to challenge the statutory provision. Therefore, as an exceptional case the appellant is permitted to modify the relief portion in the writ petition and writ appeal is allowed by making the interim order absolute. The assessing officer is free to enquire into the genuineness of the use W.A.No: 1684/2007 2 of the item imported and if there is any sale, tax will be recovered. Appeal is allowed by modifying the judgment of the learned Single Judge in appellant's case as above. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: