IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 OP.No. 31792 of 2000(I) ----------------------- PETITIONER: ---------- M/S.POPULAR PLASTIC INDUSTRIES, OLLUR, REPRESENTED BY ITS MANAGING PARTNER C.R.FRANCIS. BY ADV. SRI.KMV.PANDALAI RESPONDENT: ----------- THE SALES TAX OFFICER, IVTH CIRCLE, THRISSUR. BY GOVT.PLEADER SMT. T.C.R.CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER CMP.NO.54192/2000 IN OP.NO.31792/2000 ------------ Dismissed 17/3/2008 Sd/- P.R.RAMAN, JUDGE APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF HTE ASSESSMENT ORDER DTD. 29/7/1998 ISSUED BY THE RESPONDENT. EXT.P2 TRUE COPY OF THE APPELLATE ORDER DTD. 5/12/98 PASSED BY THE IST APPELLATE AUTHORITY. EXT.P3 TRUE COPY OF THE NOTICE DTD. 11/7/2000 ISSUED BY THE RESPONDENT. EXT.P4 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DTD.15/07/2000. EXT.P5 TRUE COPY OF THE LETTER DTD. NIL FILED BY THE PETITIONER. EXT.P5A TRUE COPY OF THE TRIBUNAL'S ORDER DTD. 25/2/1999. EXT.P6 TRUE COPY OF THE PENALTY ORDER NO.25121873/94-95 ISSUED BY THE RESPONDENT. EXT.P6A TRUE COPY OF THE NOTICE ISSUED ON 22/9/2000. P.R.RAMAN, J. --------------------------- O.P.No.31792 OF 2000 ---------------------------- Dated this the 17th day of March, 2008 JUDGMENT Petitioner, a Small Scale Industrial Unit, is an assessee under the K.G.S.T. Act. He challenges Ext.P6 proceedings by which a penalty was imposed for an amount of Rs.1,77,534/- being double the amount of tax due. Notice, Ext.P3 was issued to the petitioner to which he replied by Ext.P4. 2. Admittedly, the petitioner availed the benefit of Form 18 declaration at the time of purchase of the raw materials, which is being used for final product manufactured by them. The Assessing Officer however denied him Form 18 benefit and completed the assessment, against which he preferred an appeal and by Ext.P2 the order of assessment was set aside by the Appellate Authority and directed to delete the turnover of Rs.11,53,560/- from the taxable turnover and to delete the levy of tax at 7 1/2%. Ext.P2 became final, since there was no further appeal or revision. This appellate order was passed as early as in 1998. It was thereafter that the penalty proceedings were initiated under Section 45A of the K.G.S.T. -2- O.P.No.31792/2000 Act. Ext.P4 is the reply submitted by the petitioner. In the factual situation so long as Ext.P2 is not set aside by any competent authority in an appeal or revision, the position in law is that the petitioner is entitled to the benefit of Form 18 declaration. If so, there arises no question of any false declaration being made by the petitioner under Section 45 A. Whether the petitioner is entitled for Form 18 declaration is a matter to be adjudicated in a further appeal challenging Ext.P2. So long as that is not done and as far as the present case is concerned, the order Ext.P6 issued after Ext.P2 appellate order having become final, is clearly illegal, un- authorised and without jurisdiction. Accordingly, Ext.P6 is quashed. Original Petition is disposed of as above. P.R.RAMAN, Judge. kcv. -3- O.P.No.31792/2000