IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 32691 of 2009(F) -------------------------- PETITIONER(S): --------------- SRI PADMABALAJI ALLOYS(P)LTD., NIDA, KANJIKODE, PALAKKAD DISTRICT, REPRESENTED BY ITS PUBLIC RELATIONS OFFICER, M.S.SREEVALSAN. BY ADV. SRI.K.SRIKUMAR SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR RESPONDENT(S): --------------- 1. THE INTELLIGENCE OFFICER, SQUAD.NO.I, SPECIAL SQUAD, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 2. THE KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.32691 OF 2009 ------------------------------ Dated this the 17th day of November, 2009 J U D G M E N T ---------------------- 1. Petitioner is challenging Ext.P11 interim order issued by the 2nd respondent Tribunal on an interlocutory application filed along with a second appeal, which is filed against Ext.P4 order imposing penalty under Section 67 of the Kerala Value Added Tax Act, 2003 (KVAT Act). During pendency of the first appeal the petitioner had approached this court and in Ext.P7 judgment this court directed disposal of the appeal by the Deputy Commissioner and stayed the recovery of the amount covered under Ext.P4, on condition of the petitioner remitting an amount of Rs.7 lakhs. Ext.P8 is the order issued on the first appeal wherein the penalty was confirmed. 2. Contention of the petitioner is that major portion of the penalty is assessed on the basis of the presumption that based on the consumption of Electricity, and assuming that the petitioner might have effected excess production than what is conceded. According to the petitioner the assumption of the respondents that 800 units of energy is required for production of one Metric Ton of Ingots, is highly fallacious. According to the W.P.(C).32691/09-F 2 petitioner the stand adopted by the respondents is based on a project report prepared by M/s. KSIDC in the case of another industry. It is further submitted that the concerned officials of the KSIDC themselves admitted during examination that, it is totally unsafe to conclude that 800 units of energy alone is required for manufacturing of one Metric Ton of iron ingots. It is pointed out that the statement of those officials are to the effect that the energy required will be within the region of 950 to 1047 units. Therefore it is contended that imposition of penalty based on mere assumptions and presumptions could not be substantiated. 3. However, it is noticed that the 1st appellate authority had considered all the above contentions of the petitioner. But those contentions were repelled through Ext.P8 order. On going through Ext.P11 interim order, which is impugned in this writ petition, it is noticed that, after enumerating the contentions of the petitioner in brief, the Tribunal, without any discussions regarding its merits, went on to exercise its discretion and imposed condition for granting stay. It is not reflected in Ext.P11 as to on what basis the Tribunal had arrived at a conclusion for imposition of such a condition. The practice of imposing conditions for granting stay in a mechanical manner has been deprecated in various decisions of this court as well as W.P.(C).32691/09-F 3 by the Hon'ble Supreme Court. 4. It is pointed out by learned counsel for the petitioner that the 2nd respondent Tribunal had already posted the appeal for final hearing on 24.11.09. Considering the facts and circumstances I am of the opinion that the matter can be disposed of directing the 2nd respondent Tribunal to consider and pass orders on the appeal at the earliest. 5. In the result the 2nd respondent Tribunal is directed to consider and pass orders on Ext.P9 appeal as early as possible. It is submitted by learned counsel for the petitioner that the petitioner will co-operate with the hearing and no adjournment will be sought for on the date of hearing on 24.11.09. 6. However, all endeavour will be taken by the 2nd respondent Tribunal to dispose of the matter within a period of two months from the date of receipt of a copy of this judgment. 7. Ext.P11 order is modified to the effect of directing the petitioner to pay a sum of Rs.2 lakhs and furnish security for the balance amount within 3 weeks from today. C.K.ABDUL REHIM, JUDGE. okb