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 TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 W.A.No. 2064 of 2008 ------------------------------ (AGAINST THE JUDGMENT IN W.P.(C) No.18265/2007 DATED 25.8.2008) APPELLANT/PETITIONER: ------------------------------------ M/S.EMCEES TRADERS, ERAKKATHIL BUILDING, KOTTAYAM-686 010, REPRESENTED BY ITS MANAGING PARTNER, MANI JACOB. BY ADV. SRI.M.J.THOMAS RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE SALES TAX OFFICER, OFFICE OF THE SALES TAX OFFICER, KOTTAYAM. 4. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES OFFICE, KOTTAYAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.2064 of 2008 ------------------------------------------ Dated, this the 28th day of October, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.18265 of 2007 dated 25th August, 2008. (2) The brief facts are:- The petitioner had called in question the correctness or otherwise of Ext.P6 Circular issued by the Department wherein it is stated that the proposal for compounding on the basis of MRP for packed commodities has been withdrawn. (3) The petitioner is the distributor of Glaxo Smith Kline Consumer Health Care Limited. In the budget proposal for the year 2007-08, the State Government has proposed to offer a facility to first sellers dealing in commodities in packed items to compound the tax at MRP, and that in cases of goods suffering tax at the first point of sale at MRP, the subsequent sales would be exempted from payment of tax. On that basis the second respondent had issued the Circular Ext.P5. (4) By Ext.P6 Circular dated 4.6.2007, the earlier proposal made in Ext.P5 Circular has been withdrawn and it is further stated in W.A.No.2064 of 2008 2 Ext.P6 that the subsequent sellers who purchased goods under the cover of Form 8HH under the scheme are permitted to sell the goods without remitting tax. It is also stated that since the compounding option has not been accepted yet, issuance of Form 8HH has to be dispensed forthwith. (5) The contention of the petitioner before the learned Single Judge was that based on such offer made in Ext.P6 Circular, he has started supply of goods under 8HH invoices and collected tax only at the first point of sale at MRP. (6) The learned Single Judge, being of the opinion that since the petitioner is not a first seller in the State, which is also not disputed by the petitioner in the writ petition, has held that he is not entitled to the benefit of Ext.P6 Circular. (7) When the matter was posted before Court for admission, we had enquired with the learned counsel appearing for the appellant, whether the benefit of Ext.P6 Circular can be given to a subsequent seller in the State, when the Circular itself states that the benefit can be given only to the first sellers in the State, we did not get any positive answer from the learned counsel. That only means that the Circular can be applied only to such of those who are first sellers in the State and not for any other person. W.A.No.2064 of 2008 3 (8) In that view of the matter, we are of the firm opinion that the learned Single Judge has not committed any error whatsoever which would call for our interference in appeal. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns