IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WP(C).No. 12617 of 2008(B) -------------------------- PETITIONER(S): -------------------- M/S.INTERNATIONAL FREEZ FISH EXPORTS, AROOR, ALAPPUZHA DISTRICT REPRESENTED BY ITS PARTNER, N.RAVEENDRANATHA BHAT. BY ADV. SRI.V.P.SUKUMAR SRI.KURYAN THOMAS RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER, KUTHIATHODE, ALAPPUZHA DISTRICT. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. BY GOVT. PLEADER SRI. MANOJ P KUNJACHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12617 of 2008(B) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 27.3.2007 PASSED BY THE 1ST RESPONDENT FOR 2004-05 EXT.P2: TRUE COPY OF THE APPEAL DATED 13.09.2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AGAINST EXT.P1 ASSESSMENT ORDER. EXT.P3: TRUE COPY OF THE APPLICATION FOR STAY OF COLLECTION OF TAX DATED 13.09.2007 FILED BY THE PETITIONER ALONG WITH EXT.P2 APPEAL. EXT.P4: TRUE COPY OF THE RR NOTICE DATED 27.3.2008 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT UNDER SECTION 7 OF THE RR ACT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. K.VINOD CHANDRAN,J. --------------------------------------- W.P.(C). No. 12617 of 2008 ---------------------------------------- Dated this the 6th day of December, 2011 JUDGMENT The challenge made in the above writ petition is against the levy of tax on the transfer value of DEPB and tax levied under Section 5 A for purchase of fuel and oil. With respect to levy of tax on DEPB the Honourable Supreme Court has in 2008 17 VST 182(SC) Yasha Overseas V. Commissioner of Sales Tax held that REP licenses would satisfy the definition of 'goods' and upheld the levy of tax on the transfer of the same. DEPB credit standing on the same footing, hence, will have to be treated as 'goods', following the decision of Supreme Court. With respect to the issue of tax under Section 5 A it is submitted by the counsel for the petitioner that the matter was pending in appeal. Following the Supreme Court judgment, I uphold the levy of tax on DEPB credit transfers, the same being goods and the transfer attracts liability to sales tax. The issue under Section 5 A if pending before the appropriate authority shall be considered W.P.C. No. 12617 of 2008 -2- expeditiously by the appropriate appellate authority, on the petitioner giving an application for the same along with a copy of this judgment. In the circumstance, the writ petition is disposed of as above. The petitioner's counsel submits that the petitioner was granted a stay of recovery proceedings under Ext.P4 for three months, on the petitioner remitting ` 3,00,000/-(Rupees Three lakhs only) within one month therefrom. It is submitted that the petitioner has complied with the direction by this Court and prays for breathing time to pay the balance amount. The writ petition having been pending for so long, I feel that the petitioner can be allowed to pay the balance amount demanded as per Ext.P1 in eight equal monthly instalments starting from 6th of January 2012. If the petitioner commits default of two consecutive instalments, the assessing authority is free to take appropriate steps for recovery. K.VINOD CHANDRAN, JUDGE. Kp/-