IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WA.No. 2222 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.39779/2003 Dated 03/07/2009 .................... APPELLANT(S): PETITIONER ------------------------ M/S.KIRLEX IMPEX PRIVATE LTD. REPRESENTED BY ITS MANAGING DIRECTOR, NEERETIL BUILDINGS, VAZHAKKALA, KOCHI-684021. BY ADV. SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. THE COMMISSIOENR OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, ERNAKULAM. 3. THE INTELLIGENCE OFFICER (IB) COMMERCIAL TAXES, OFFICE OF THE DEPUTY COMMISSIONER (INTELLIGENCE) DEPARTMENT OF COMMERCIAL TAXES, PALARIVATTOM, KOCHI- 682025. 4. THE DEPUTY TAHSILDAR (RR) KANAYANNUR TALUK, ERNAKULAM, KOCHI-682011. BY G.P. SRI. MOHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W. A. No. 2222 OF 2009 -------------------------------------------- Dated this the 18th day of January, 2010 JUDGMENT Ramachandran Nair, J. Penalty is levied for alleged bogus inter-State sales accounted by appellant to a party outside Kerala located in Mangalore. When the Writ Appeal was entertained we noticed that appellant has not remitted admitted arrears of tax. We therefore issued a order on 17.12.2009 stating that writ jurisdiction is a discretionary one and if appellant does not remit the admitted arrears of tax we will not entertain Writ Appeal on merits. Even though reasonable time was granted the appellant has not cared to remit even the admitted arrears of tax. Therefore in our view, Writ Appeal should not be heard on merits because the appellant who does not comply with the order of this Court is not entitled to complain against the action of the State. However, we heard counsel for the appellant who argued the merits of the case as well. Appellant's case as put forward by him is that goods worth Rs. 39 lakhs were purchased by his party outside Kerala by bringing cash to Kerala and handing over the same to him. In the first place, it is hard to 2 believe that huge cash of as much as Rs. 39 lakhs is brought by a party to Kerala for making accounted purchases. If the transaction is accounted and if the party is genuine then we see no reason why he did not take a DD or cheque at least to avoid risk to him in carrying huge cash. Government Pleader pointed out that letters sent to the purchaser outside the State were returned stating that no such party exists. C forms could be issued by a person who has registration under the CST Act outside Kerala and unless he has a place of business, he would not have got registration. Therefore if letters sent to the party were returned with the statement that no such party exists, then appellant alone should be answerable for the bogus sales effected by him. Since the appellant could not prove genuineness of the transaction and the C forms produced, penalty was rightly levied and confirmed by the learned single judge. We therefore dismiss the Writ Appeal. There will be direction to the Commissioner to take immediate steps for recovery. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 3