IN THE HIGH COURT OF KERALA AT ERNAKULAM
No. 3 of 2008()
1. M/S/CINZAC SALES SERVICE PVT. LTD.
... Petitioner
Vs
1. COMMISSIONER OF COMMERCIAL TAXES, TVM.
... Respondent
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :15/02/2008
O R D E R
H.L.DATTU, C.J. & K.M.JOSEPH, J.
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O.T.A.No.3 of 2008
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Dated, this the 15th day of February, 2008
JUDGMENT
H.L.Dattu, C.J.
Though the matter is posted for admission, by consent of the
learned counsel appearing for the parties to the lis, the matter is taken up for
final hearing since the issues involved in this matter lies in a narrow
compass.
(2). The assessee is the dealer registered under the provisions
of the Kerala Value Added Tax Act (” Act ” for short). The assessee had
approached the Commissioner of Commercial Taxes by filing an application
under Section 94 of the Act read with Rule 78 of the Kerala Value Added Tax
Rules to clarify the rate of tax payable under the Act on Boilers (HSN Code
8402.12.00), Thermic Fluid Heaters (HSN Code 8419.89.90) and Hot water
Generators (HSN Code 8403.10.00).
(3). The Commissioner of Commercial Taxes by his order
dated 12-8-2006, after hearing the authorised representative of the applicant
has clarified as under:
“Admittedly Boilers and Hot Water Generators come
under HSN Code 8402 and 8403 respectively. All
commodities coming under the said HSN are classified
as entry 60 (2) and 60 (3) of SRO 82/06 taxable at
12.5%.
As regard to ‘Thermic Fluid Heaters’
admittedly coming under HSN 8419.89.90 has not
been specifically mentioned in any of the schedules to
KVAT Act 03. Hence it will fall under the residual entry
103 of SRO 82/03 taxable at 12.5%.”
(4). Aggrieved by the clarifications so issued by the
OTA 3/2008 -2-
Commissioner of Commercial Taxes, the assessee is before us in this
appeal.
(5). Smt.Meera V.Menon learned counsel appearing for the
dealer would submit that, the afore-said items on which clarification was
sought by the applicant would necessarily fall under Entry 83 (59) of 3rd
Schedule to the Act and secondly S.R.O.82/06 was introduced in the
Statute Book only on 21-1-2006 and therefore the commodity on which
clarification was sought should be taxed only under Entry 83 (59) of the 3rd
Schedule to the Act. In the alternative, the learned counsel would contend
that the order passed by the Commissioner of Commercial Taxes is not a
speaking order in the sense that it does not contain any reasons whatsoever.
In support of that contention, the learned counsel brought to our notice catena
of decisions of the Apex Court which would show that orders should contain
the reasons. Reference to those decisions are not necessary for disposal
of this appeal.
(6). We have carefully perused the order passed by the
Commissioner of Commercial Taxes. In the said order, the Commissioner
has observed that the authorised representative of the applicant was heard
and the contentions of the applicant were examined. No where in the order
the Commissioner has even referred to the contentions of the applicant nor is
there any reference to consideration of those contentions. A quasi-judicial
authority, when he frames an order, he is expected to notice the contentions
canvassed by the parties before him and answer those contentions by
assigning appropriate reasons. Since the order passed in the instant case
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does not have these ingredients, in our view, the impugned order is not only
arbitrary but also violative of Article 14 of the Constitution of India. In view of
the above, it is difficult for us to sustain the order passed by the
Commissioner of Commercial Taxes. Accordingly, we pass the following:
Order
(i). The order passed by the Commissioner of
Commercial Taxes dated 12-8-2006 is set aside and the matter is
remanded to the Commissioner of Commercial Taxes to re-do the
matter in accordance with law, after affording an opportunity of being
heard to the applicant.
(ii). The applicant is at liberty to bring to the notice of
the Commissioner of Commercial Taxes contentions canvassed in
this writ appeal and other contentions which are available to him.
(7). With the above observations, the Tax Appeal is disposed
of.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(K.M.JOSEPH)
JUDGE
MS/DK.