IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 4049 of 2011(E) ------------------------- PETITIONER:- ------------------ M/S.COOL DEALS 1/364A, THYKAVU, THAIKKATTUKARA P.O. ALUVA BY ADV. SRI.A.KUMAR RESPONDENTS:- --------------------- 1. THE DEPUTY COMMISSIONR (APPEALS) ERNAKULAM-682016. 2. THE COMMERCIAL TAX OFFICER ALUVA-683101. BY SR.GOVT.PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = = WP(C).No.4049 of 2011-E. = = = = = = = = = = = = = Dated this the 10th February, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P4 common interim order passed by the first respondent appellate authority while disposing the stay petitions filed along with Exts.P2, P2(a) and P2(b) appeals which were initiated against Exts.P1, P1(a) and P1(b) orders of assessments. Through Ext.P4 order, the first respondent had granted interim stay subject to condition of the petitioner remitting 1/3rd of the tax amount due and on furnishing security bond for the balance. 2. According to the petitioner, the impugned order was passed in a mechanical manner without adverting to the contentions in the appeal in its proper perspective. It is contended that the main issue relates to classification of Copper Tubes dealt with by the petitioner. According to the petitioner, the Copper Tube which is dealt with by the WP(C).No.4049 of 2011-E. 2 petitioner could not be considered as spare parts of items falling under Entry 84, Sl.Nos.2 and 7 of the Kerala Value Added Tax Act (KVAT Act) (under SRO.No.82/2006 promulgated under the KVAT Act). On the other hand it will fall under Entry 99 of the KVAT Act and the HSN Code adopted is 74.11. It was observed by the appellate authority that the assessing authority had refused the assessment for the reason that the petitioner is a dealer in Refrigerator and Air-conditioner spare parts and hence Copper Tubes dealt with by him are need to be classified as parts of Refrigerator or Air-conditioner. 3. Learned counsel for the petitioner contended that, apart from reiterating the findings of the assessing authority, the appellate authority had not gone deep into the contentions raised which is basically relying on the fixation of HSN Code and based on various decisions. However, it is noticed that the appellate authority had insisted upon the condition after taking note of the grounds WP(C).No.4049 of 2011-E. 3 raised by the appellant. Therefore, it could not be said that the interim order was passed on a total non application of mind. At the same time, I am of the opinion that there is no proper consideration of the grounds raised, which is reflected in the interim order. Further, no reasoning was stated for imposition of condition insisting on payment of 1/3rd of the amount. Under such circumstance it is necessary to direct a reconsideration of the interim order. But, however in order to curtail multiplicity of proceedings and also considering the interest of justice, I am inclined to direct disposal of the appeals and till then to grant a modification of the condition imposed. 4. Therefore, the writ petition is disposed of directing the first respondent to consider and dispose of the appeals, Ext.P2, P2(a) and P2(b) on an early basis, after affording an opportunity of hearing to the petitioner, at any rate within two months from the date of receipt of a copy of this Judgment. WP(C).No.4049 of 2011-E. 4 5. Till such time the appeals are disposed of, recovery of the amounts due is hereby stayed imposing a modified of the condition and insisting payment of 1/4th of the amount due and on furnishing security bond for the balance, without sureties, within a period of three weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, (Judge) Kvs/-