IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).No. 25706 of 2010(K) ----------------------------------------- PETITIONER(S): ------------------------- HEINZ INDIA PVT. LTD., DOOR NO.V/629, UNNICHIRA, THRIKKAKKARA, KOCHI-682 021, REPRESENTED BY MR.BALAJI VASUDEVAN- COMMERCIAL MANAGER. BY ADVS. SRI.JOSEPH JERARD SAMSON RODRIGUES, SRI.ROVIN RODRIGUES. RESPONDENT(S): --------------------------- THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-I, COMMERCIAL TAXES, ERNAKULAM, KOCHI-682 015. BY SR. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R.RAMACHANDRA MENON, J. ----------------------------------- W.P.(C) No. 25706 OF 2010 ------------------------------- Dated this the 16th day of August, 2010 J U D G M E N T ~~~~~~~~~~~ The petitioner has approached this Court challenging Ext.P4 assessment order, followed by Exts.P5 to P7 demand notices, stating that the course pursued by the concerned respondent is not in conformity with the statutory prescriptions and more so, when the matter is under challenge before the Apex Court, wherein Ext.P3 interim order has been passed admitting the S.L.P. concerned. 2. The basic dispute is whether the 'Nycil Prickly Heat Powder' manufactured by the petitioner is a 'medicine or drug' coming under Entry 79 or 'medicated talcum powder' falling under Entry 127 of the First Schedule to the KGST Act. After considering the issue, with respect to same assessment year, the position was answered against the petitioner by the assessing authority, which in turn was taken up by way of First Appeal before the concerned Deputy Commissioner and thereafter, before the Tribunal and since interference was declined, the petitioner approached this Court earlier by filing S.T.Rev.Case Nos. 164/2007 and 172/2008. W.P.(C) No.25706/2010 2 3. After considering the contentions in detail, Ext.P2 judgment was passed by the Division Bench of this Court, whereby the case projected by the petitioner was rejected and the Revision Petitions were dismissed, holding that the product in question was not liable to be classified under a general entry, but required to be classified under the special entry, namely, the entry 127 of the First Schedule to the KGST Act. It is the case of the petitioner that Ext.P2 judgment has been subjected to challenge by filing SLPs 4630-4631/2009 before the Apex Court and as borne by Ext.P3 order dated 8.3.2010 followed by the order dated 22.3.2010, whereby the SLPs have been admitted. This being the position, the assessment finalised by the respondent in respect of the assessment year 1999-2000 as per Ext.P4 assessment order placing reliance on Ext.P2 judgment passed by this Court, which has not become final, by virtue of the challenge raised by the Apex Court is stated as not correct and this in turn is under challenge in this Writ Petition. 4. Heard the learned Government Pleader as well. W.P.(C) No.25706/2010 3 5. Going by the materials on record, it is true that Ext.P2 judgment passed by the Division Bench of this Court has been challenged by filing S.L.P before the Apex Court and that the concerned S.L.Ps have been admitted. But, there is no case for the petitioner that the Apex Court have granted any interim order of stay. Yet another aspect to be noted is that, along with the S.L.Ps, the petitioner had also filed W.P.(C) No.115/2009 under Article 32 of the Constitution of India challenging the constitutional validity of Entries 127 and 144 of the KGST Act. When the said matter came up for consideration before the Apex Court on 23.2.2010, it was observed by the Hon'ble Supreme Court that the Writ Petition under Article 226 would be maintainable and that the petitioner could approach the High Court in this regard, if so advised. Accordingly, the Writ Petition was dismissed as withdrawn. 6. Inspite of the dismissal of the Writ Petition regarding the challenge raised in respect of the constitutional validity of Entry 127, the petitioner does not have a case that the said proposition has been mooted before this Court by filing any Writ W.P.(C) No.25706/2010 4 Petition under Article 226. Going by the grounds raised in the present Writ Petition, there is no such contention and no relief is sought for in this regard. 7. In the above circumstances, this Court finds that the issue is squarely covered by Ext.P2 judgment passed by the Division Bench of this Court and as such, no interference is warranted. The Writ Petition fails and the same is dismissed accordingly. This however is without prejudice to the rights and liberties of the petitioner to challenge Ext.P4, in accordance with law or to avail the benefit of the 'Amnesty Scheme' notified by the Government and available till 31.12.2010. 8. It is made clear that the liability, if at all satisfied by the petitioner as above availing the benefit of the Scheme, will be subject to the outcome of the matter pending before the Apex Court as covered by Ext.P3. (P.R.RAMACHANDRA MENON, JUDGE) ps/19/8