IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 25112 of 2008(M) -------------------------- PETITIONER: ------------ M/S.WAVES FOODS PVT. LTD., XVII/416 & 417, KAROTHUKUZHY JUNCTION, MARKET ROAD, ALUVA, ERNAKULAM DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, V.K.ABDUL REHMAN. BY ADV. SRI.ARIKKAT VIJAYAN MENON RESPONDENTS: ------------- 1. COMMERCIAL TAX OFFICER(AUDIT ASSESSMENT) DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT MINI CIVIL STATION, ALUVA. 2. DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASST. COMMISSIONER OF COMMERCIAL TAXES, MATTANCHERRY. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 25112 OF 2008 M ```````````````````````````````````````````````````` Dated this the 21st day of August, 2008 J U D G M E N T Petitioner challenges Ext.P3 and seeks a direction to dispose of Ext.P2 appeal. Ext.P3 is an order passed by the appellate authority granting stay of collection of tax for the assessment year 2005-06 under the KVAT Act on payment of 50% of the amount due and furnishes security for the balance amount. 2. I heard learned counsel for the petitioner and learned Government Pleader. Learned counsel for the petitioner points out that the petitioner has been assessed to tax at 12.5% on the products which are exigible to tax at 4%. He further points out that the assessing authority has proceeded to rely on the fact of imposition of penalty eventhough the penalty itself has been sent back for reconsideration as evident from Ext.P4 order. He points out that a learned single Judge of this Court has in W.P.(C) No.18740/07 considered the question and found that the power of the State to levy tax at the rate of 12.5% is available only if the commodity is not found in the Third Schedule. According to the WPC.25112/08 : 2 : petitioner, the commodity dealt with by the petitioner is squarely within Entry 84(33) of the Third Schedule and on a perusal of Rules of Interpretation of Schedules to the Act, this is a clear case where going by Entry 2008 which is shown against Entry 84(33), all the commodities mentioned therein would come within the ambit of Entry 2008. Squash is a commodity which would come within Entry 2008. The petitioner has filed return under the Central Excise Act showing the commodity which has been accepted by the authorities, the appellate authority went wrong by ordering to pay tax at 50%. 3. The appellate authority has stated that the dispute in the appeal apparently relates to the rate of tax. The appellate authority has found that the rate of tax is debatable issue and also the assessment based on low profits also to be exempted and a detailed hearing along with the assessment records would be required. It cannot be said that in the facts of this case the order can be said to be passed mechanically or without giving any reasons at all. I do not think the petitioner has made out a case to interfere with Ext.P3 or for a direction to dispose of the appeal. No WPC.25112/08 : 3 : doubt that the matter will receive full attention of the appellate authority when the appeal itself is taken up for hearing. Leaving open the contentions of the petitioner, writ petition is dismissed. But, in the circumstances, the petitioner is granted two weeks' time from today to comply with the directions in Ext.P3. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE