IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 31281 of 2007(Y) -------------------------- PETITIONER: ------------------ M/S.SAFARI ENTERPRISES, KANDALA, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY THE MANAGING PARTNER, M.ABDUL RASHEED. BY ADV. SRI.C.K.THANU PILLAI SRI.S.S.HUSSAIN RESPONDENTS: --------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE UNION OF INDIA, REPRESENTED BY THE REVENUE SECRETARY, CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI. 3. THE COMMISSIONER OF CENTRAL EXCISE, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-682 018. 4. THE COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT), OFFICE OF THE DEPUTY COMMISSIONER (AA), THIRUVANANTHAPURAM. 5. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, THIRUVANANTHAPURAM. 6. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, NEYYATTINKARA. 7. M/S.IDEA MOBILE COMMUNICATIONS LTD., MERCY ESTATE RAVIPURAM, KOCHI-682 015, REPRESENTED BY ITS MANAGER. R1 BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN R2 & R3 BY ASST.SOLICITOR SRI.P.PARAMESWARAN NAIR R2 & R3 BY SR. STANDING COUNSEL SRI.P.GOPINATH MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009, ALONG WITH WPC Nos. 3709 OF 2007 & 1054 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkms/ WP(C).No. 31281 of 2007(Y) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF ORDER NO. 32010979814/05-06 DATED 30.07.2007 ISSUED BY THE 4TH RESPONDENT. P2 : COPY OF APPEAL IN FORM NO.29 DATED 12.09.2007 PRESENTED BEFORE THE 5TH RESPONDENT. P3 : COPY OF APPLICATION IN FORM NO.30 DATED 12.09.2007 FOR STAY PRESENTED BEFORE THE 5TH RESPONDENT. P4 : COPY OF NOTICE IACRR NO.117/07 DATED 01.10.2007 ISSUEDBY THE 6TH RESPONDENT. P5 : COPY OF ORDER IN KVATA.223/07 DATED 09.10.2007 ISSUED BY THE 5TH RESPONDENT. P6 : COPY OF ORDER IN I.A.NO.6994/2007 IN W.P.(C).NO.14889/2007(V) DATED 31.05.2007. RESPONDENTS' EXHIBITS: NIL kkms/ // TRUE COPY // P.A. TO JUDGE P.R.RAMACHANDRA MENON, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). Nos. 31281 & 37309 OF 2007 & 1054 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 8th day of July 2009. JUDGMENT The petitioners in all these three cases, have approached this Court with the following prayers:- (i) declare that Entry 117 of the Third Schedule read with the provisions in sub-sections (1) of section 6 of the Kerala Value Added Tax Act, 2003 which authorizes levy of value added tax on Recharge Coupons as ultra vires and unconstitutional. (ii) declare that sections 65 and 66 of the Finance Act, 1994 as amended subsequently, so far they impose or authorize, the imposition of service tax on Recharge Coupons on which sales tax is levied, are ultra vires and unconstitutional. (iii) issue a writ of Certiorari or any other appropriate writ, order or direction quashing Ext.P1 order levying value added tax under the provisions of the Kerala Value Added Tax Act, 2003 on Recharge W.P.C. Nos. 31281 & 37309 OF 2007 & 1054 OF 2008 2 Coupons are without jurisdiction, ultra vires and unconstitutional. (iv) issue such other orders or directions as this Court thinks fit in the circumstances of the case. 2. Heard the learned counsel appearing on behalf of the petitioners and the learned Government Pleader appearing for the respondents. It is conceded that the challenge raised against the levy of sales tax in respect of the distribution of SIM Cards/Recharge Coupons under the Kerala Value Added Tax Act stands answered in favour of the petitioners by virtue of the decision rendered by the Division Bench of this Court as per judgment dated 13.02.2009 in W.P.(C).27445/05 and connected cases. 3. With regard to the challenge raised against the levy of Service Tax, the position stands answered in favour of the Revenue, as per the decision rendered by a Division Bench of this Court as reported in 2009(1) KLT 889 ( Commissioner of Central Excise v. Idea Mobile Communications Ltd. ). W.P.C. Nos. 31281 & 37309 OF 2007 & 1054 OF 2008 3 4. In the above circumstances, nothing further remains to be adjudicated in the above Writ Petitions and all the three matters are disposed of in the light of the decisions of the Division Bench as aforesaid, making it clear that no tax is liable to be levied upon the petitioners by virtue of Entry 117 of the Third Schedule read with the provisions under Sub-Section (1) of Section 6 of the Kerala Value Added Tax Act, 2003; whereas the liability to pay Service Tax will definitely be attracted in respect of the transactions. All the Writ Petitions are disposed of as above. P.R.RAMACHANDRA MENON JUDGE kkms/