IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 38504 of 2010(K) --------------------------------- PETITIONER(S): ------------------- M/S.N.V.CHETTIAR,S.M. STREET,KOZHIKODE, REP.BY ITS MANAGING PARTNER SRI.V.THYAGARAJHAN. BY ADVS. SRI.AUGUSTINE JOSEPH SRI.J.JULIUS SMITH SRI.K.S.ROCKEY RESPONDENT(S): -------------------- 1. STATE OF KERALA,REP.BY THE SECRETARY, FINANCE DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, KOZHIKODE - 673 524. 3. THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE-11,KOZHIKODE - 673 524. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, ALONG WITH WPC. NO.843/2011 WPC. NO.489/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J ------------------------------------------------- W.P(C) Nos.38504/2010, 489/2011 & 843/2011 -------------------------------------------------- Dated this the 9th day of February, 2011. J U D G M E N T Issue involved in these writ petitions pertains to the rate of tax applicable to 'Margarine', which is at present falling within entry of 64(8) of the Kerala Value Added Tax Act (KVAT Act) and which is liable to be taxed at 12.5%. Contention of the petitioners is that the rate of tax applicable to the product before the advent of Kerala Value Added Tax Act 2003 (KVAT Act) was only 4% and when the Kerala Tax on Entry of Goods into Local Areas Act was introduced there was a provision for set off provided as special rebate. It is stated that the rate of tax of 'Margarine' in the neighbouring States is still 4%. It is also contended that, recently the milk product 'Ghee' under entry 64(7) was substituted under entry 51B of schedule III with the rate of tax at 4%. Hence the petitioners are challenging the inclusion of 'Margarine' under entry 64(8) with tax liability at the rate of 12.5%. W.P(C) Nos.38504/2010, 489/2011 & 843/2011 2 2. Learned Government Pleader on the other hand contended that the rate of tax applicable to 'Margarine' was already clarified through an order issued by the Commissioner of Commercial Taxes, exercising power under Section 94 of the KVAT Act, and the said clarification has already been upheld by a Division Bench of this Court in a revision petition filed against the order of the Commissioner. Under such circumstances the challenge will no more survive, is the contention. 3. Eventhough various contentions are raised in these writ petitions, learned counsel for the petitioners concede that the petitioners will be satisfied if a direction is issued from this Court to consider a representation submitted before the Government seeking reschedulement of the relevant entry for the purpose of reducing the rate of tax applicable to 'Margarine'. Ext.P1 in W.P(C) No.38504/2010 and Ext.P3 in W.P(C) No.843/2011 and Ext.P7 in W.P(C) No.489/2011 are copies of such representations submitted in this regard. The petitioners are seeking direction for consideration and disposal of those W.P(C) Nos.38504/2010, 489/2011 & 843/2011 3 representations on an early basis. 4. I take note of the fact that the representations which were submitted before the Government is not in the nature of any statutory representation. Hence a positive direction for disposal of said representations could not be issued through a writ, in exercise of powers under Article 226. However, since the grievances and prejudices caused to the business community and traders is represented before the Government, it is for the Government to consider such representation and to take appropriate decision thereof. 5. Hence these writ petitions are closed with a direction to the State Government to consider the representations as mentioned above through its appropriate authority and to take a decision thereof, if necessary after affording an opportunity of hearing to the petitioners and other persons concerned, as early as possible. C.K.ABDUL REHIM JUDGE ab