IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22599 of 2008(M)
1. M/S.ALAPATT TRADING CORPORATION
... Petitioner
Vs
1. THE INTELLIGENCE OFFICER,
... Respondent
For Petitioner :SRI.V.P.SUKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :07/08/2008
O R D E R
K. M. JOSEPH, J.
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W.P.C. NO. 22599 OF 2008 M
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Dated this the 7th August, 2008
JUDGMENT
Petitioner challenges Ext.P5 order imposing penalty on the
petitioner. Petitioner also seeks a declaration that Sub-section
(10) of Section 44 of the KVAT Act is discriminatory and
unconstitutional. Briefly put, the case of the petitioner is as
follows:
Shri Jose Alapatt is the Managing Partner of M/s. Alapatt
Jewellery and also of M/s. Alapatt Trading Corporation. He is
also the Managing Director of M/s. Alapatt Consumer
Electronics India Pvt. Ltd. The three Concerns are independent
registered dealers under the Act. M/s. Alapatt Jewellery is
dealing with gold and silver ornaments whereas the other two
Concerns are dealing in Home Appliances. Home Appliances
were found on the fourth floor of the House of Alapatt.
According to petitioner, those goods belong to the petitioner as
well as M/s. Alapatt Consumer Electronic India Pvt. Ltd. and
WPC.22599/08 M 2
they were duly accounted in the Books of Accounts of those
dealers. The complaint is that without issuing notice to the
petitioner and without also giving sufficient time to devise a
reply, the impugned order has been passed. It is further
contended that the Authority has proceeded to impose the
maximum penalty provided under Section 44(8) of the KVAT
Act. In this context, learned counsel for the petitioner seeks
support from the decision in St. Michael’s Oil Mills v. State of
Kerala (1988 (68) STC 360). There is a challenge to Sub-
section (10) of Section 44 as being discriminatory. It is his case
that unintentional omission to declare the godown is made a
ground to punish the dealer as if he has attempted to evade
payment of tax.
2. I heard the learned Government Pleader also. Learned
Government Pleader would point out that the petitioner has an
alternate remedy available to him. I am inclined to relegate the
petitioner to pursue the remedy by way of filing an Appeal.
Accordingly, the petitioner is relegated to prefer Appeal against
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Ext.P5 order. If Appeal is preferred in time, the same will be
considered and a decision taken thereon in accordance with law
after affording an opportunity of hearing to the petitioner.
Petitioner has already paid a sum of Rs.5 lakhs as ordered in the
interim order. It is further ordered that if the petitioner pays a
sum of Rs.2,00,000/= (Rupees Two Lakhs) towards Ext.P5
within a period of three weeks from today, the recovery
proceedings against the petitioner pursuant to Ext.P5 will be
kept in abeyance till the disposal of the Appeal. I leave open the
challenge to Sub-section (10) of Section 44 of the KVAt Act.
The Writ Petition is disposed of as above.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
// True Copy//
PS to Judge