IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WA.No. 1154 of 2009() --------------------- AGAINST THE ORDER IN I.A.NO.12455/07 IN WPC.20028/2006 .................... APPELLANT(S): PETITIONER: -------------- M/S. PINTU SPICES REPRESENTED BY MANAGING PARTNER MRS.SHERLY JOHNY, W/O. JOHNY, POOVANMOLEL PERINGOLE P.O., KOLENCHERRY, PIN – 682 311. ERNAKULAM DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF FINANCE, SECRETARIATE, TRIVANDRUM. 2. THE DIRECTOR OF INDUSTRIES AND COMMERCE TRIVANDRUM. 3. MEMBER SECRETARY, STATE OF COMMITTEE FOR SALE TAX EXEMPTION, TRIVANDRUM. 4. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ERNAKULAM. 5. AGRICULTURAL INCOME TAX AND SALES TAX OFFICER, SALES TAX OFFICE, II CIRCLE, PERUMBAVOOR, ERNAKULAM DISTRICT. 6. THE DISTRICT COLLECTOR, ERNAKULAM. 7. SPECIAL TAHSILDAR (RR) ALUVA. 8. THE DEPUTY TAHSILDAR (RR) KUNNATHUNADU, PERUMBAVOOR. W.A.No.1154/09 : 2 : 9. VILLAGE OFFICER, P.O. KIKARANADU ERNAKULAM DISTRICT. 10. APPELLATE ASSISTANT COMMISSIONER ( ADDITIONAL 10TH RESPONDENT) COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI.K.P.PRADEEP. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- W.A.No.1154 of 2009 & C.M.Appln. No.542 of 2009 ------------------------------- Dated this the 24th June, 2009 J U D G M E N T Raman, J. C.M.Appln.No.542 of 2009 is an application for condonation of delay of 592 days in filing the appeal. It is supported by an affidavit. The appellant has filed a writ petition, W.P.(C) No.20028/2006, which is still pending before this Court. In that writ petition, the appellant filed I.A.No.12455/07 seeking for a stay of recovery of tax. Subsequently another I.A. was filed for revival and extension of the stay which was granted. The learned Single Judge, by the impugned order, confined the stay in respect of tax on exempted items and refused to grant stay in respect of other items. It is averred in the affidavit that though the appellant-petitioner was informed of the interim order, he did not realise the adverse consequence of the same, until a copy of the direction issued by the fifth respondent was received seeking recovery of an amount of more than Rs.4 lakhs WA.No.1154/09 2 alleged to be the sales tax arrears due. The affidavit does not disclose the date on which the information regarding the interim order was received by him and from whom. The affidavit also does not state as to when the appellant received the notice of recovery. Therefore, the long delay of 592 days in filing this appeal is not at all explained to the satisfaction of this Court. 2. Further, this is an appeal against the interim order. According to the learned counsel appearing for the appellant, interim order is having a nature of final order and therefore appealable as per a Full Bench decision of this Court. We have no doubt that an order passed at the interim stage itself need not be an interim in nature and may be final in nature. But so far as this case is concerned, the writ petition itself is pending and what is sought for by the petitioner is for stay of recovery of sales tax until the disposal of the writ petition. Earlier a stay was granted and subsequently it was modified limiting the recovery of exempted items. As such there is no finality to the order and if the appellant ultimately wins, he will WA.No.1154/09 3 be entitled to get refund of the entire amount paid during the pendency of the proceedings. In such circumstances, no appeal will lie. 3. Even though the learned counsel for the appellant points out that there is a direction to the concerned officer to recover the same, we make it clear that it is open to the authority to recover the same in the absence of stay, but need not be taken as a positive direction. Accordingly, the delay petition is dismissed. Consequently, the appeal is also dismissed subject to the above conditions. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.