IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WA.No. 592 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5591/2009 Dated 24/02/2009 .................... APPELLANT(S): PETITIONER ------------------------ INDIAN EMPORIUM, PATTANAKKAD, CHERTHALA, REGD. OFFICE: 11/77, CALVETTY ROAD, P.B.NO.45, KOCHI-682001 REPRESENTED BY ITS PARTNER, JOB V.JOB. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): RESPONDENTS -------------------------- 1. THE INTELLIGENCE OFFICER, SQUAD NO.1, COMMERCIAL TAXES, ALAPPUZHA. 2. THE COMMERCIAL TAX OFFICER, FIRST CIRCLE, MATTANCHERRY. 3. THE COMMISSIONER OF COMMERCIAL TAXES, KERALA, THIRUVANANTHAPURAM-695033. BY G.P. SRI.V.K.SHAMSUDEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... Writ Appeal No.592 of 2009 .................................................................... Dated this the 23rd day of March, 2009. JUDGMENT Ramachandran Nair, J. The appeal is filed against judgment of the learned Single Judge declining to entertain the writ petition on account of availability of effective alternate remedy by way of appeal against impugned penalty order. The main case of the appellant is that it is engaged in export and therefore, the whole case of attempted evasion of tax is without any basis. Appellant's case is violation of natural justice in as much as they were not given effective opportunity. We are of the view that even for violation of natural justice, the appellate authority can grant relief as it has all the powers of the original authority. Counsel for the appellant produced the last assessment completed under the KGST Act which is for the year 2001-2002. On going through the assessment, we find that the appellant's claim of total export is genuine because the only turnover assessed for that year under the KGST Act is sale value of import licence. Counsel submitted that appellate authority being a 2 departmental officer, will not grant stay against recovery and if the huge amount of penalty is recovered during pendency of appeal, appellant will be put to serious hardship. Considering all these contentions, we dispose of the Writ Appeal granting stay against recovery proceedings for four months on condition that appellant will remit rupees four lakhs within three weeks from now and file appeal before the statutory authority. If Rs.4 lakhs is paid and appeal filed, then recovery will remain stayed for four months from today and in between, appellate authority will call for records and dispose of the appeal on merits after hearing the appellant. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms