IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 22777 of 2008(J) -------------------------- PETITIONER: ------------ ANISH.M.S, AGED 30 YEARS, S/O.P.K.SASIDHARAN, MUPPATHIL CHIRA (H), KARAPUZHA.P.O,KOTTAYAM-3, PIN-686 003. PATRNER- M/S.SIVASAKTHI COMBINES, DEALERS IN FORAM MATTRESSES SREENIVASA IYYER ROAD, THIRUNAKKARA, KOTTAYAM. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: ------------- 1. DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, THEVELLY.P.O., KOLLAM. 2. INSP.ASST.COMMISSIONER, COMMERCIAL TAXES, KOTTAYAM. 3. COMMERCIAL TAX OFFICER, FIRST CIRCLE, KOTTAYAM. 4. SECRETARY TO GOVERNMENT (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, REP.BY THE STATE OF KERALA. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 22777 OF 2008 J ```````````````````````````````````````````````````` Dated this the 5th day of August, 2008 J U D G M E N T Petitioner presses to challenge Ext.P13. Ext.P13 is the appellate order granting stay on condition that the petitioner remits 50% of the tax and also furnishes security for the balance amount. The principal complaint of the petitioner appears to be that the goods dealt with by the petitioner is Fibre Foam Mattresses and that is coming under entry 46 of the 3rd Schedule which is taxable at 4%. It is pointed out by the learned counsel for the petitioner that the petitioner is unable to represent his case, though notice was issued on account of unavoidable circumstances and levy of tax at the rate of 12.5% is unwarranted and, therefore, the condition imposed is illegal. Learned Government Pleader points out that the petitioner did not even give reply to the notice and the questions raised in the writ petition are matters to be considered when the appeal itself is disposed of and there is WPC.22777/08 : 2 : only an interim order. 2. Having heard both parties, I feel that in the interests of justice the petitioner can be permitted to pay 40% of the tax due and furnish security for the balance amount. Accordingly, Ext.P13 is modified and it is ordered that if the petitioner remits 40% of the tax and furnishes security for the balance amount within ten days from today, recovery proceedings will be kept in abeyance till the appeal is disposed of. Writ petition is disposed of as above. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE