IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 ST.Rev..No. 35 of 2010() ------------------------ TA.280/2009 of S.T.A.TRIBUNAL,ADDL.BENCH,KZD. .................... REVISION PETITIONER --------------------------------------- M/S.NECTOR LAB ASSOCIATES , EMILY ROAD, KALPETTA P.O, WYNAD. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE SECRETARY(TAXES), THIRUVANANTHAPURAM. BY G.P. SRI. MOHAMMED RAFIQ THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 09/02/2010, ALONG WITH STRV 36 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. -------------------------------------------- S. T. Rev. Nos. 35 & 36 OF 2010 -------------------------------------------- Dated this the 9th day of February, 2010 JUDGMENT Ramachandran Nair, J. These are Tax Revision Cases filed under Section 41(1) of the K.G.S.T. Act against orders of the Tribunal rejecting appeals as time- barred. Since the petitioner filed separate applications under Section 39(1) for condonation of delay of 440 days, the Tribunal by separate order in the applications filed for condonation of delay rejected the same. In fact the appeals are rejected following the dismissal order in the Delay Condonation Petitions. Even though counsel for the petitioner argued the case on merits, particularly with reference to this Court's judgment in favour of the petitioner for other years, we feel that revisions cannot be entertained under Section 41(1) against the orders issued by the Tribunal rejecting appeals as time-barred. It has to be noted that Section 41(1) of the KGST Act specifically provides that revisions are maintainable only against the orders issued by the Tribunal under sub-sections (4) and (7) of Section 39 of the Act. While 2 the order under sub-section (4) is an order on merit in appeal, the order under sub-section (7) is an order issued by the Tribunal in Review Petition filed after disposal of the appeal. An order passed rejecting an appeal as time-barred is an order issued under the proviso to Section 39 (1) of the Act. A right of second appeal to the Tribunal is available to the party provided the same is filed within 60 days from the date of first appellate order as provided under Section 39(1). The proviso to Section 39(1) confers power on the Tribunal to condone delay in filing appeal beyond 60 days and unless the Tribunal condones the delay, a belated appeal filed cannot be entertained by the Tribunal. In other words, what is clear from the proviso is that appeal filed beyond the time limit is not maintainable unless delay is condoned by the Tribunal consequent to which alone appeal gets admitted. In this case, appeals were time barred and the Tribunal declined to condone the delay. Consequently, the appeals though numbered were not entertained by the Tribunal and so much so, the order issued by the Tribunal rejecting the appeals is an order under the proviso to Section 39(1) refusing to admit appeals and consequently no revision is maintainable against the 3 said order. 2. Since the Registry appears to be unaware of the scheme of revision provided under Section 41(1) of the Act, we direct the Registry not to entertain and number revision cases filed under Section 41(1) of the KGST Act except when it is filed against orders issued by the Tribunal disposing of the appeal on merits which is an order issued under Section 39(4) and revisions filed against orders issued by the Tribunal in Review Petitions under Section 39(7) of the Act. For the reasons stated above, revisions are dismissed as not maintainable. However, it will be open to the assessee to pursue the only other remedy against the impugned orders of the Tribunal which is the one available under Art. 226 of the Constitution of India. (C.N.RAMACHANDRAN NAIR) Judge. (P.S. GOPINATHAN) Judge. kk 4