IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WA.No. 1706 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.5053/2002 Dated 10/07/2006 .................... APPELLANT(S): PETITIONER IN O.P. -------------------------------- M/S.CARDAMOM MARKETING CORPORATION, VANDANMEDU, IDUKKI DISTRICT, REPRESENTED BY THE MANAGING PARTNER, R.KRISHNASWAMY. BY ADV. SRI.C.K.THANU PILLAI RESPONDENT(S): RESPONDENTS IN O.P. ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KUMILI, IDUKKI DISTRICT. 3. THE INTELLIGENCE OFFICER (I.B.), IDUKKI AT KATTAPPANA, IDUKKI DISTRICT. 4. THE COMMERCIAL TAX OFFICER, KARARAJAR SALAI CIRCLE, MADURAI -20. BY G.P. SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... Writ Appeal No.1706 of 2006 .................................................................... Dated this the 27th day of October, 2009. JUDGMENT Ramachandran Nair, J. Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere in the matter because of the availability of alternate remedy. Sri.Thanu Pillai, counsel appearing for the appellant submitted that the contention raised is on the jurisdiction of the Intelligence Officer to levy penalty under Section 45A of the KGST Act for production of bogus C Forms to avail concessional rate of tax on interstate sales. We find force in this contention because Section 9 (2) of the CST Act only makes procedural provisions of KGST Act and Rules applicable for the purpose of assessment of tax, levy of interest and penalty. However, so far as offences punishable under the CST Act are concerned, by virtue of Section 9(2)(A) of the CST Act, orders have to be passed in conformity with provisions of the CST Act. Therefore, the Intelligence Officer, though is vested with power to levy penalty by virtue of Section 45A of the KGST Act, could levy such 2 penalty only under specific provisions of the CST Act authorising penalty, which in this case is for production of bogus C Forms. It is seen that production of bogus C Forms may be covered by Section 10 (a) read with Section 10(e) of the CST Act. For violation of these provisions, the provision is to prosecute the offendor under clause (f) of Section 10 of the CST Act. Provisions of Section 10A providing for penalty does not cover cases falling under Section 10(a) or (e) of the Act. Since these matters are not considered by the Intelligence Officer at the time of levy of penalty, we feel the matter requires to be reconsidered by him after giving opportunity to the appellant. Further, counsel has cited that in the place of bogus C Forms, genuine C Forms were produced and the claim was allowed in assessment. Government Pleader submitted that this contention is not proved with any document such as revised assessment issued by the Assessing Officer accepting such C Forms. We feel it would be fair and reasonable to give an opportunity to the appellant to produce revised assessments, if the original assessments are modified accepting genuine C Forms later produced by the appellant. In the circumstances, Writ Appeal is 3 allowed by vacating the judgment of the learned Single Judge with direction to the Intelligence Officer to reconsider the matter and rectify mistakes, if any, in the original order after giving an opportunity to the assessee which is directed to file a rectification application under Section 43 of the KGST Act to rectify the impugned order of penalty along with copy of this judgment. The Intelligence Officer is directed to pass orders within four months from now. The appellant will produce copy of the judgment and along with it application for rectification as directed above, immediately on receipt of the judgment from this court for timely compliance of the above direction by the Intelligence officer. We make it clear that since the matter was pending in this court in Writ Petition and Writ Appeal, the officer will entertain the rectification application as if the same is filed in time. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms