IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 WP(C).No. 16504 of 2011(K) ------------------------------------ PETITIONER(S): ---------------------- P.MATHEW,CHENKULATHU CASHEW FACTORY, PERUMANOOR.P.O,VALAKOM,KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENT(S): ------------------------ 1. THE INTELLIGENCE OFFICER,SQUAD NO.II, COMMERCIAL TAXES,KOLLAM AT KOTTARAKKARA, PIN691506. 2. THE MANAGER,FEDERAL BANK LTD,PULAMON BRANCH,KOTTARAKKARA,PIN-691512. BY GOVERNMNT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20 /06 /2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16504 of 2011(K) APPENDIX EXHIBIT P1: TRUE COPY OF THE FORM H CERTIFICATE OF EXPORT ISSUED BY M/S ALEPH ENTERPRISES. EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 27.6.2007 OF THE INTELLEIGENCE OFFICER, COMMERCIAL TAXES. EXHIBIT P3: TRUE COPY OF THE BANK GUARANTEE DATED 28.6.2007 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE ORDER OF PENALTY DATED 2.6.2011 OF THE 1ST RESPONDENT ALONG WITH THE POSTAL COVER. EXHIBIT P5: TRUE COPY OF THE LETTER DATED 6.6.2011 OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT. //TRUE COPY// P.S. TO JUDGE MNS C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 16504 of 2011 --------------------------------- Dated this the 20th day of June, 2011 JUDGMENT Penalty was imposed against the petitioner under Section 47(6) of the Kerala Value Added Tax Act 2003 (KVAT Act) through Ext.P4 order. In Ext.P4 order the 1st respondent had directed the security deposit of Rs.2,50,000/- furnished by way of Bank guarantee to be converted as penalty. Consequent to Ext.P4 the 1st respondent had addressed the Bank which had issued the Bank Guarantee through Ext.P5 letter requesting to realise the amount in question. 2. Contention of the petitioner is that, the steps for realisation of the Bank Guarantee was initiated even before a copy of Ext.P4 order was served on the petitioner. According to the petitioner, he is taking steps to challenge Ext.P4 by filing statutory appeal. But if the Bank Guarantee is realised without giving any opportunity to file such appeal WP(C) .16504/2011 2 before the appellate authority, that will cause severe prejudice. It is evident that the amount of penalty imposed stands fully secured through the Bank Guarantee. Hence realisation of the same can be kept in abeyance, till the disposal of the appeal, is the contention. 3. Considering the facts and circumstances as stated above, I am of the view that, interest of justice will be served if the petitioner is relegated to the appellate authority and if the respondents are directed to keep in abeyance realisation of the Bank Guarantee till the disposal of the appeal. 4. Therefore the writ petition is disposed of directing the petitioner to file appeal against Ext.P4 order within a period of two weeks from the date of receipt of a copy of this judgment. If any such appeal is filed before the appellate authority within the time stipulated as above, the appellate authority shall consider such appeal and dispose of the same, after affording an opportunity of hearing to the WP(C) .16504/2011 3 petitioner, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 5. If the petitioner files appeal as stated above and keeps the Bank Guarantee renewed till the disposal of the appeal, realisation of the Bank Guarantee shall be kept in abeyance, till then. C.K.ABDUL REHIM,JUDGE pmn/ WP(C) .16504/2011 4