IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WP(C).No. 14804 of 2011(A) --------------------------------------- PETITIONER(S): ------------------------ HDFC BANK LTD., ELMAR SQUARE, M.G. ROAD, RAVIPURAM, ERNAKULAM, KOCHI-682 015, REPRESENTED BY MR.DINESH NAIR-SENIOR MANAGER. BY ADV. SRI.JOSEPH JERARD SAMSON RODRIGUES, SRI.ROVIN RODRIGUES. RESPONDENT(S): -------------------------- 1. THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE-1, ERNAKULAM, KOCHI-682 015. 2. THE DY. COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM, KOCHI-682 015. 3. THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, KAKKANAD, ERNAKULAM, KOCHI-682 030. R1 TO R3 BY SR. GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 14804 of 2011(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CLARIFICATION NO.C3-23036/2008 DATED 29/09/2008. EXT.P2(a): COPY OF THE ASSESSMENT ORDER DATED 24/02/2010 FOR THE YEAR 2006-2007. EXT.P2(b): COPY OF THE ASSESSMENT ORDER DATED 30/03/2010 FOR 2007-2008. EXT.P2(c): COPY OF THE ASSESSMENT ORDER DATED 15/03/2010 FOR 2008-2009. EXT.P3: COPY OF THE JUDGMENT DATED 13/07/2010 OT APPEAL NO.5 OF 2010. EXT.P4: COPY OF THE JUDGMENT DATED 04/08/2010 IN WP(C) NO. 24342/2010 (P). EXT.P5: COPY OF THE LETTER DATED 12/08/2010. EXT.P6(a): COPY OF THE ORDER DATED 30/11/2010 FOR THE YEARS 2006-2007. EXT.P6(b): COPY OF THE ORDER DATED 30/11/2010 FOR THE YEAR 2007-2008. EXT.P6(c): COPY OF THE ORDER DATED 30/11/2010 FOR THE YEAR 2008-2009. EXT.P7: COPY OF THE JUDGMENT DATED 05/04/2011 IN WP(C) NO. 10803/2011 (A). EXT.P8: COPY OF THE LETTER DATED 25/04/2011. EXT.P9(a): COPY OF THE NOTICE DATED 11/04/2011 FOR THE YEAR 2007-2008. EXT.P9(b): COPY OF THE NOTICE DATED 11/04/2011 FOR THE YEAR 2008-2009. EXT.P10: COPY OF THE LETTER DATED 26/05/2011 ISSUED FROM O/O. THE JOINT COMMISSIONER OF CUSTOMS, AIR CARGO COMPLEX, COCHIN-683 111. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs S.SIRI JAGAN, J. ================== W.P.(C).No. 14804 of 2011 ================== Dated this the 7th day of July, 2011 J U D G M E N T The petitioner is a registered dealer under the Kerala Value Added Tax Act on the files of the 1st respondent. The petitioner deals in gold bullions of different weights ranging from 5 gms to 1 kg. The issue arising in this writ petition is as to whether one kg. gold bar imported by the petitioner comes under HSN code 7108.12.00 or HSN code 7108.13.00. The assessing authority issued Exts.P9(a) and P9(b) pre-assessment notices, which, according to the petitioner, is to classify the gold bars imported by the petitioner under HSN 7108.13.00. According to the petitioner, it is classifiable under HSN 7108.12.00. The petitioner contends that from the earlier experience of the petitioner with the assessing authority, it is very likely that the assessing authority will confirm the proposals in the pre-assessment notices without taking into account the contentions raised by the petitioner in the reply to the pre-assessment notices. The petitioner submits that the case of the petitioner is clearly covered by Ext.P3 Division Bench judgment dated 13.7.2010 of this Court in OTA No.5/2010 and the decision of the Supreme Court in Dy. Commissioner of Sales Tax v. G.S.Pai and Co. [Vol.45 (1980) S.T.C. 58 (SC)]. 2. The learned Government Pleader would contend that these w.p.c.14804/11 2 judgments are not authorities for the proposition that gold bullions of more than 10 gms weight would come under HSN 7108.13.00. 3. I am not inclined to go into the question on merits. What is under challenge are only pre-assessment notices. The same have not ripened into a binding order. Admittedly, the petitioner has filed objections to the proposals in the pre-assessment notices. I am of opinion it is for the petitioner to place all these contentions before the assessing authority at the time of hearing pursuant to the impugned notices. Accordingly, this writ petition is disposed of with the following directions: On the proposals contained in the impugned pre-assessment notices, the petitioner shall be afforded an opportunity of being heard. While passing orders pursuant to the pre-assessment notices, the assessing authority shall specifically consider all the contentions raised by the petitioner in the replies to the pre-assessment notices. The assessing authority shall also consider the contentions of the petitioner on the basis of the two judgments referred to above and enter specific findings in respect of the same in his order as to why the said decisions are not applicable to the case of the petitioner. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.14804/11 3