IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WA.No. 670 of 2008 -------------------- AGAINST THE JUDGEMENT IN WPC.6796/2008 .................... APPELLANT/PETITIONER: ------------------------------------- PARISONS AGROTECH(P)LTD., CHEROOTTY ROAD, KOZHIKODE-673032, REPRESENTED BY ITS DIRECTOR, SRI.N.K.KHALID. BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THE STATE OF KERALA, REPRESENTEDBY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES, KOZHIKODE-6. 3. ASSISTANT COMMISSIONER-II, AUDIT-ASSESSMENT, KOZHIKODE-32. BY SR. GOVT. PLEADER SRI. MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No.670 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2008. JUDGMENT H.L.DATTU, CJ, This appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.6796 of 2008 dated 27.2.2008. By the impugned order the learned Single Judge has declined to interfere with the orders passed by the first appellate authority dated 11.2.2008 (Ext.P5). 2. The assessee, being aggrieved by the penalty orders passed by the assessing authority for the assessment year 2005-2006 has preferred an appeal before the first appellate authority in V.A.T. Appeal No.37 of 2008. Along with the appeal the assessee has also filed an application for grant of an unconditional interim order. The first appellate authority, while deciding that application, has granted an interim order of stay of the amounts demanded by the assessing authority pursuant to the orders passed for the assessment year 2005-2006 by directing the assessee to deposit 50% of the disputed tax by way of cash and furnish security for the balance amount. Aggrieved by the order dated 11.2.2008, the petitioner was before this court in W.P.(C) No.6796 of 2008. As we have already noticed, the learned Single Judge has rejected the writ petition. It is the correctness or otherwise of the order passed by the learned Single judge is the subject matter of this writ appeal. 3. Sri. Jayasankar.A.K., learned counsel appearing for the assessee would submit that the the appellate authority has not considered the fact W.A.670/2008. 2 that there was no dispute regarding the genuineness of the Bill of Entry filed by M/s.Raj Impex who were admittedly the importers of the consignment. It is also stated that if the High Sea sales are excluded from the computation of tax liability, the assessee might have to pay Rs.2 lakhs as against the demand of Rs.42,82,813/- towards tax and consequential penalty would also be reduced. It is further stated that the direction issued by the first appellate authority, if it is complied with, virtually the petitioner would be paying the entire amount as directed by the assessing authority. 4. We have gone through the orders passed by the assessing authority as well as the orders passed by the first appellate authority. Having gone through the said orders, we are of the opinion that the first appellate authority has not properly appreciated the facts and circumstances pleaded by the assessee while refusing to grant an unconditional interim order. 5. Keeping in view the peculiar facts and circumstances of the case, in our opinion, it would be appropriate to direct the first appellate authority to decide the V.A.T. Appeal No.37 of 2008 without insisting on the petitioner depositing the amount as directed by him in his order dated 11.2.2008 within a time frame. Accordingly, the writ appeal is disposed of as under: Order i) The writ appeal is disposed of. ii) The order passed by the learned Single Judge is set aside. iii) Now a direction is issued to the first appellate authority to decide the appeal, V.A.T. Appeal No.37 of 2007 without insisting on payment of the amount as directed by the first appellate authority by order dated 11.2.2008, as expeditiously as possible, at any rate within 45 days from the date of receipt of a copy of this judgment. Any observation made by us in the course of our order is only for the W.A.670/2008. 3 purpose of disposing of the writ appeal and those observations need not influence the appellate authority while deciding the appeal on merits. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb.