IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 W.A.No. 1941 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.21152/2008 DATED 25/08/2008 .................... APPELLANT/PETITIONER: ------------------------------------ JOEMON RAJAN MANGALY, PROPRIETOR, MANGALY ROCK PRODUCTS, THURAVOOR P.O., ANGAMALLY, ERNAKULAM DISTRICT. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. COMMERCIAL TAX OFFICER, ANGAMALLY. 2. INTELLIGENCE OFFICER, SQUAD NO.II, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT KARUKUTTY. 3.TAHSILDAR (RR) TALUK OFFICE, ALUVA. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.1941 of 2008 ------------------------------------------ Dated, this the 25th day of September, 2008 JUDGMENT H.L.Dattu, C.J. Sri.Muhammed Rafiq, learned Government Advocate is directed to take notice for the respondents. (2) We have heard Sri.Harisankar V.Menon, learned counsel appearing for the appellant and Sri.Muhammed Rafiq, learned Government Advocate. (3) This writ appeal arises out of an order passed by the learned Single Judge in W.P.(C) No.21152 of 2008 dated 25th August, 2008. By the impugned order, the learned Single judge has declined to interfere with the orders passed by the Intelligence Officer of the Department in exercise of his powers under Section 45A of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as 'the Act'). However, has permitted the petitioner to prefer an appeal, if he so desires, against the impugned order passed by the Intelligence Officer. (4) The facts in brief are:- The petitioner is running a metal crusher unit. It is stated that no primary crusher is employed by him and he has only one secondary crusher. W.A.No.1941 of 2008 2 (5) Petitioner is aggrieved by the estimation of production on the basis of consumption of electrical energy and consequential penalty being imposed on him. (6) The authorities have found that there is suppression of turnover based on the certificate issued by the Assistant Engineer of the Kerala State Electricity Board as per which the connected load of the unit was taken as 28 HP and also the report of enquiry obtained from the Mining and Geology Department. According to the petitioner, copies of the certificate issued by the Assistant Engineer of the Electricity Board and also the report of the Mining and Geology Department were not served on him and, therefore, the impugned order passed is in violation of the principles of natural justice. (7) We have carefully gone through the representation filed by the petitioner before the authorities for grant of the aforesaid certificate and also to permit him to cross-examine the officer who has issued the certificate in so far as the consumption of electrical energy of the petitioner's unit is concerned, and also the person who had furnished the report from the Mining and Geology Department. Though such a request was made to the authorities to furnish copies of the report and without W.A.No.1941 of 2008 3 permitting the petitioner to cross-examine those officers who had furnished the report , the Intelligence Officer has proceeded to pass the impugned order. (8) In our opinion, the assertions made by the petitioner has some merit. In that view of the matter, while relegating the petitioner to prefer an appeal within 30 days from today, we should direct the first appellate authority to accept a sum of Rs.1.5 lakhs as a condition precedent for entertaining the appeal. (9) Accordingly, we pass the following: ORDER i) Writ appeal is disposed of. ii) Appellant is permitted to file an appeal before the first appellate authority within 30 days from today. iii) The appellant shall deposit a sum of Rs.1.5 lakhs before the first appellate authority at the time of filing of the appeal itself. iv) If such an appeal is filed as directed by us, the first appellate authority will consider the same on merits and pass appropriate orders in accordance with law, as expeditiously as possible, at any rate, within two months from the date of filing of the appeal. This order is W.A.No.1941 of 2008 4 passed by us in the peculiar facts and circumstances of the case and therefore shall not be treated as a precedent. v) All the contentions of both the parties are left open. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk.