IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 20891 of 2004(K) -------------------------- PETITIONER(S): --------------- R. DILEEP KUMAR, PARAPPATTIL VEEDU, NELLIKKAL, KUZHIMATTOM P.O., KOTTAYAM-686 533. BY ADV. SRI.B.SAJEEV KUMAR SRI.M.K.THANKAPPAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO THE DEPARTMENT OF LABOUR, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT LABOUR OFFICER, KOTTAYAM. 3. THE CESS ASSESSMENT OFFICER, (BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT), O/O. THE DISTRICT LABOUR OFFICER, KOTTAYAM. 4. BUILDING & OTHER CONSTRUCTION WORKERS WELFARE BOARD, REP. BY ITS SECRETARY, POOJAPPURA P.O., THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. MATHEW VADAKKEL FOR R1 TO R3 SRI.C.R.SYAMKUMAR, SC, KCWWF BOARD FOR R4 SRI.M.L.SAJEEVAN, SC, K.B & O.C.W.W.B FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 7.7.99 ISSUED BY THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, SANCTIONING THE HOUSE BUILDING ADVANCE OF RS. 3 LAKHS TO THE PETITIONER. EXT.P2 TRUE COPY OF THE ANNUAL STATEMENT OF GPF ACCOUNT OF THE PETITIONER FOR THE YEAR 1998099 SHOWING THE WITHDRAWAL OF RS. 1.5 LAKHS FOR HOUSE CONSTRUCTION. EXT.P3 TRUE COPY OF THE COMPLETION REPORT DATED 31.1.2001 SUBMITTED BY THE PETITIONER BEFORE HIS EMPLOYER (GOVT. OF INDIA, CENTRAL EXCISE) ALSO SHOWING THE VALUATION OF THE BUILDING AND THE SOURCE OF FUNDS. EXT.P3(a) TRUE COPIES OF THE VALUATION REPORT DATED 29.1.2001 PREPARED BY THE PWD AUTHORITIES. EXT.P4 TRUE COPY OF THE NOTICE BEARING NO. A6/699/01 DATED 26.11.2001 ISSUED BY THE 3RD RESPONDENT. EXT.P5 TRUE COPY OF THE ASSESSMENT ORDER DATED 2.1.2002 ISSUED BY THE THIRD RESPSONDENT. EXT.P5(a) TRUE COPY OF THE REPLY DATED 9.1.2002 SUBMITTED BY THE PETITIONER. EXT.P6 TRUE COPY OF THE ASSESSMENT ORDER NO. A6/699/01 DATED 11.3.02 ISSUED BY THE THIRD RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER NO. AC-1284/2002 DATED 15.7.2002 ISSUED BY THE 2ND RESPONDENT SETTING ASIDE EXT.P6 AND REMANDING THE MATTER. EXT.P8 TRUE COPY OF THEFRESH ASSESSMENT ORDER A6/699/01 DATED 12.3.03 PASSED BY THE THIRD RESPONDENT. EXT.P9 TRUE COPY OF THE ORDER NO. C-1744/03 DATED 8.5.2003 PASSED BY THE 2ND RESPONDENT SETTING ASIDE EXT.P8 AND REMANDING THE MATTER AGAIN. EXT.P10 TRUE COPY OF THE SUBSEQUENT ASSESSMENT ORDER NO. A6/699/01 DATED 9.6.2003 PASSED BY THE THIRD RESPONDENT. EXT.P11 TRUE COPY OF THE APPEAL DATED 1.9.2003 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P12 TRUE COPY OF THE APPELLATE ORDER NO. C-3536/03 DATED 27.1.04 PASSED BY THE 2ND RESPONDENT. EXT.P13 TRUE COPY OF THE ADVERTISEMENT ISSUED BY PRIVATE BUILDERS PRESCRIBING THE RATE/COST OF CONSTRUCTION OF BUILDING WITH BETTER AMENITIES AS PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 16.11.2003 EXT.P14 TRUE LCOPY OF THE BILLS DATED 28.10.1998 REGARDING PURCHASE OF MARBLES BY THE PETITIONER FROM THE DEALERS IN RAJASTHAN ALSO SHOWING THE ENDORSEMENTS MADE BY THE SALES TAX ;AUTHORITIES AS TO THE VALUE OF THE MATERIALS AND REALISATION OF ENTRY TAX AT THE PRESCRIBED RATE. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 20891 OF 2004 -------------------------------------------- Dated this the 30th day of July, 2009 JUDGMENT W.P.C. is filed challenging Exts. P11 and P12 orders wherein petitioner is called upon to remit Rs. 13,497/- towards cess payable under the Building and other Construction Workers Welfare Cess Act, 1996. I have heard counsel appearing for the petitioner, standing counsel appearing for the Welfare Board and Government Pleader for respondents 1 to 3. It is seen that petitioner has undergone a lot of ordeal in litigating in the same matter in as much as demand got cancelled as many as three times and follow-up orders were issued each time pursuant to orders in appeal. The consequence is that as against original demand at Rs. 12,500/- the revised demand is Rs. 13,497/-. Petitioner's case is that the building was constructed by him personally by purchasing materials at competitive cost and therefore PWD valuation or Government valuation which applies to buildings constructed by engaging contractors cannot be applied. I find force in the contention because in the valuation made in Ext.P12 substantial 2 portion of the building is treated as completed with marble slab, whereas petitioner used marble slabs in some area and balance portion is constructed by marble tiles and mosaic tiles. Further counsel for the petitioner has relied Ext.P13 wherein a leading company in 2003 has advertised for construction of building at Rs. 500/- per sq.ft. If discount is given for inflation, petitioner's case is that cost will still be below Rs. 500/- per sq. ft and therefore petitioner will not be liable to pay construction workers' welfare cess. The building constructed by the petitioner is a little over 2000 sq. ft. Petitioner has given details of the cost of construction which Rs. 5,42,000/-. In the normal course this Court should not proceed to fix the value and construction cost of the petitioner's building but should order readjudication on petitioner producing meticulous details of cost of construction before the adjudicating authority. However, at this distance of time I do not think the matter should again be remanded because petitioner has already undergone the ordeal of appeal and revised assessment in three rounds. I feel the cost of construction advertised by the company can be adopted with slight modification because petitioner's construction was 3 2 or 3 years prior to the date of advertisement. Since building constructed is a little over 2000 sq. ft I fix the construction cost at Rs. 10,00,500/- with direction to the third respondent or the Board which has received payment from the petitioner,to refund the excess paid over Rs. 10,005/- within a period of one month from the date of production of a copy of this judgment by the petitioner. W.P.C. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 4