IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WA.No. 2443 of 2008 ------------------------ AGAINST THE ORDER IN WPC.35636/2008 Dated 15/12/2008 .................... APPELLANTS/PETITIONERS: ------------------------------ 1. SEAFOOD EXPORTERS ASSOCIATION OF INDIA, SEA FOOD HOUSE, WILLINGDON ISLAND, COCHIN-3 REPRESENTED BY ITS PRESENT PRESIDENT K.G.LAWRENCE, S/O.K.G.MATHUKUTTY ALIAS GEORGE, GEO BHAVAN, P.B.NO.906, THOPPUMPADY, COCHIN - 682006. 2. M/S.ACCELERATED FREEZE DRYING COMPANY LTD., AMALGAM HOUSE, WILLINGDON ISLAND, COCHIN-3, REPRESENTED BY ITS VICE PRESIDENT, RAJU MATHEW. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR & WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, FISHERIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. KERALA FISHERMEN'S WELFARE FUND BOARD REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. WA.No. 2443/2008 ...2... 4. THE DIRECTOR OF FISHERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF FISHERIES(ZONAL) ERNAKULAM. BY SRI. C.P. SUDHAKARA PRASAD, ADVOCATE GENERAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2009, ALONG WITH W.P.(C) No.35636 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- Writ Appeal No.2443 OF 2008 & Writ Petition (C) No. 35636 OF 2008 ----------------------------------------------- Dated this the 16th day of January, 2009. J U D G M E N T Kurian Joseph, J. The appellants are the petitioners in W.P.(C) No.35636 of 2008. The validity of Sections 3(1), 3(2) and 3(3) of the Kerala Fishermen's and Allied Workers Welfare Cess Act, 2007 is the main challenge in the writ petition. There are other ancillary prayers as well. 2. The first petitioner is an Association of Seafood Exporters of India and the second petitioner is one of the members of the Association. It is seen that they have approached this Court when they were issued Exhibit P3 notice. Similar notices have been issued to other members also. They have been asked to furnish a return regarding the details of sale. W.A. 2443/08 & W.P.(C) 35636/08 2 3. The contention of the appellants-writ petitioners is that the Act is unconstitutional. It is further contended that the Act will not apply to them since their activity is export and the allied activity is only as part of export. There are other contentions as well. Since the writ petitioners have approached this Court only at the stage of notice, it is for them to take out the contention regarding applicability of the Act while furnishing the details as requested in the notice. We make it clear that apart from the details to be furnished in the standard forms, the proposed assessee is also entitled to file an additional statement furnishing all the relevant materials supporting their contention that the Act itself will not apply to them. 4. We find that the time prescribed in Exhibit P3 and in similar notices has expired. Since the writ petitioners-appellants have been before this Court, we make it clear that it will be open to them to file such returns and statements, in the case of those who have already received notice, within a period of 30 days from today. Thereafter, it will be open to the competent W.A. 2443/08 & W.P.(C) 35636/08 3 authority to process the return, afford an opportunity for hearing to the assessee concerned and pass appropriate orders. In case the stand taken by the competent authority under the Act is against the assessees, it will be open to them to approach this Court at that stage. 5. In view of the directions as above, we make it clear that in the case of the writ petitioners, the proceedings for provisional collection of cess under Section 9 of the Act will be deferred till orders are passed by the assessing authority. Needless to say, there is no question of any interest or penalty since there is no levy or notice for payment. However, as rightly pointed out by the learned Advocate General, in case despite the liability to pay and notice regarding payment and if they fail to pay, naturally the consequences will follow. 6. In that view of the matter, we do not think anything survives in the writ appeal or in the writ petition. Therefore, with the consent of the parties, we have called for W.P.(C) No.35636/2008 and a common judgment is passed. We W.A. 2443/08 & W.P.(C) 35636/08 4 make it clear that we have not gone into the constitutional validity of the Act or any of the contentions taken by the parties. Those contentions are left open. The first appellant has furnished a list of members in Exhibit P1. In order to avoid multiplicity of proceedings, the first petitioner will pay court fee in the writ petition in respect of all the members of the Association as per Exhibit P1 within a period of two weeks from today and hence they shall be treated as the writ petitioners. The writ appeal and the writ petition are disposed of as above. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp W.A. 2443/08 & W.P.(C) 35636/08 5 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. W.A. No. 2443 OF 2008 & W.P.(C) No.35636 OF 2008 J U D G M E N T 16.01.2009