IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 27983 of 2010(W) ---------------------------------- PETITIONER(S): ------------------- M/S.PERIYAR CEMENTS(P)LTD, NIDA,KANJIKODE,PALAKKAD,REPRESENTED BY SYJU JOSE, DIRECTOR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): -------------------- 1. COMMERCIAL TAX OFFICER,2ND CIRCLE, PALAKKAD-678 001. 2. APPELLATE ASST.COMMISIONER-III, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD-678 004. 3. KERALA SALES TAX APPELLATE TRIBUNAL, ADDL.BENCH,PALAKKAD-678 004. R1 TO R3 BY GOVT.PLEADER SRI. K.T. PRADEEP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.27983 OF 2010 -------------------------------------------- Dated this the 28th day of September, 2010 JUDGMENT The petitioner, who was assessed tax as per Ext.P1 order, preferred an appeal against the same before the second respondent. Short remittance of admitted tax was assigned as a reason for rejecting the appeal, as per Ext.P3 order. Feeling aggrieved by Ext.P3 order, Ext.P4 second appeal was preferred before the Tribunal under Section 39 of the KGST Act. As per Ext.P6, the Tribunal held that since the first appeal was rejected not on merits, but only on the ground of short remittance of admitted tax, the second appeal would not lie under Section 39. The contention of the petitioner is that the said finding of the Tribunal is unsustainable in the light of the judgment of this Court reported in Andhra Pradesh Steel Corporation v. State of Kerala ((1987) 67 STC 348). Evidently, the second appeal was dismissed relying on the decision of this Court in Solar Cashew v.State of Kerala reported in (2010) 28 VST 405. In view of order I propose to pass in this Writ Petition I do not think it necessary to consider the merits of the rival contentions. W.P.(C) NO.27983/2010 2 2. Evidently, the short remittance in the payment of admitted tax was made good by subsequent payment as is obvious from Ext.P5 chalan. At the same time, the assessing authority did not issue certificate showing the remittance to the petitioner. The learned Government Pleader submitted that in case the petitioner produces Ext.P5 chalan before the first respondent, the said authority would issue certificate showing the remittance and in which event, the appeal could be considered afresh on merits, on its production. In the circumstances, this Writ Petition is disposed of granting liberty to the petitioner to produce Ext.P5 chalan before the first respondent. In case the petitioner produces Ext.P5 chalan, the first respondent shall issue necessary certificate to enable the petitioner to produce the same before the second respondent expeditiously, at any rate, within a period of one week from the date of production of the same. To enable the second respondent to consider the appeal on merits on production of certificate showing such remittance, Ext.P3 order is set aside. Consequently, there will be a further direction to the second respondent to consider Ext.P4 appeal on merits on production of necessary certificate from the first respondent. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.27983/2010 3 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.27983/2010 4