IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 22627 of 2008(R) -------------------------- PETITIONER: ------------------ M/S.INDIAN OIL CORPORATION LTD., KERALA STATE OFFICE, PANAMPILLY NAGAR, ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER (FINANCE) S. SHIBU BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: ---------------------- 1. ASSISTANT COMMISSIONER(ASSMT), DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE - II, ERNAKULAM . 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (APPEALS), ERNAKULAM. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. INSPECTING ASST. COMMISSIONER OF COMMERCIAL TAXES, KAKKANAD, ERNAKULAM DISTRICT. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2008, ALONG WITH WPC. 22629/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) Nos.22627 & 22629 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July 2008 JUDGMENT In W.P.(C) 22627 of 2008 petitioner calls in question Ext.P3. Ext.P3 is an order passed in an appeal filed by the petitioner against the assessment treating the sale by the petitioner as sale under Section 5(2) of the Kerala General Sales Tax Act in view of the fact that the LPG sold by the petitioner is sold under a trade name, namely, 'INDANE'. By Ext.P3, payment of tax, which is disputed in appeal, is stayed on condition that the petitioner remits 50% of the balance amount due and furnishes security for the balance amount. 2. In W.P.(C) 22629 of 2007, for the same assessment year petitioner has been visited with penalty and in appeal against the same, Ext.P6 order has been passed staying the collection of penalty on payment of 50% of the penalty. 3. I heard learned counsel for the petitioner and the learned Government Pleader. 4. Learned counsel for the petitioner Sri. Harisankar V. Menon would submit that it is not a branded sale that the petitioner indulges in. It is WPCs.22627 & 22629/08. 2 only for distinguishing the products sold by various public sector companies that the name 'INDANE' is given, he submits. He would further submit that at any rate the petitioner company is selling at a rate less than what is charged by the Cochin Refineries, which sold the goods to the petitioner. He also relied on Rule 32(13B). He would further submits that at any rate imposition of condition of payment of 50% is highly onerous. He would submit that the case calls for interference. 5. Learned Government Pleader supports the orders. 6. Having considered all the facts and circumstances, I feel that while I need not interfere with the condition imposed in Ext.P3 in W.P.(C) 22627 of 2008, petitioner is granted two weeks time from today to comply with the order. As far as the order relating to penalty is concerned, in the very nature of the order of penalty and the question raised in the writ petition, I feel that the petitioner need be directed to pay 15% of the penalty. I cannot completely overlook the contentions raised by the petitioner and brush it aside as totally frivolous. But however, I make it clear that I must not be understood as pronouncing on the merits of the contentions and I leave open all the contentions of the parties. The petitioner needs to comply with Ext.P6 in W.P.(C) 22629 of 2008 within WPCs.22627 & 22629/08. 3 two weeks from today as modified by this judgment. The writ petitions are disposed of as above. (K.M. JOSEPH, JUDGE) sb