IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32976 of 2008(A)
1. SMT.M.A.SUHARA, PROPRIETRID, STAR
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY CHIEF
... Respondent
2. COMMISSIONER, COMMERCIAL TAXES,
3. DEPUTY COMMISSIONER (APPEALS),
4. COMMERCIAL TAX OFFICER (AA),COMMERCIAL
5. COMMERCIAL TAX OFFICER, COMMERCIAL TAXES
6. INSPECTING ASSISTANT COMMISSIONER,
For Petitioner :SRI.SHAIJAN C.GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :10/11/2008
O R D E R
K.M. JOSEPH, J.
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W.P.(C) No. 32976 OF 2008 A
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Dated this the 10th day of November, 2008
J U D G M E N T
Petitioner challenges Ext.P2 circular and seeks to
quash Exts.P4 to P9 finding that it is ill based and violative of
natural justice. Ext.P10 is also challenged. Case of the petitioner
is as follows. Petitioner deals in handmade safety matches.
Petitioner purchases handmade safety matches from
M/s.Chidambaram Match Industry, Madurai. Exemption is granted
for safety matches which are handmade as per Entry 24 of
Schedule I of the KVAT Act. During the return period 2005-06,
2006-07 and 4/2007 to 11/2008, petitioner submitted returns
claiming benefit of exemption. The assessments have been
completed by Exts.P4, P6 and P8. This is followed by demand
notice. Ext.P2 is the circular issued wherein referring to enquiry it
is stated that there is no surviving handmade match making unit in
Kerala. It is further stated that some manufacturers are, on the
other hand, selling matches which are partially machine made,
claiming tax exemption on the pretext that they are handmade
WPC.32976/08
: 2 :
safety matches. It is further stated that all officers are directed to
examine consignments from this view point before allowing
exemption claimed by the dealer. Ext.P3 is the certificate issued
by the Commercial Tax Officer, Thirumangalam dated 8.4.2008.
In Ext.P3, it is certified that Tvl.chidambaram match Industries
10C/6, Mohammed sha puram 1st street, Thirumangalam is a
registered dealer in this office having VAT No.33285042046 and
doing business in handmade safety matches only.
2. I heard learned counsel for petitioner and learned
Government Pleader. Learned counsel for petitioner submits that
appeals have been filed accompanied by stay applications against
the assessment orders. As far as the challenge against Ext.P2
circular is concerned, the only ground raised is that it has created
confusion. It may not be sufficient to challenge the circular citing
that it has created confusion. I also note that the circular states
that all officers are directed to examine consignments from the
view point mentioned in the body of the circular before allowing
exemption. It may not be possible for me to hold that the
petitioner has established a case for interfering Ext.P2. I feel that
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: 3 :
the petitioner, having invoked the appellate remedy, need not be
permitted to approach this court at this stage as applications for
stay are also pending.
Writ petition is disposed of directing the 3rd respondent to
take up the applications for stay in the appeals filed against
Exts.P4, P6 and P8 and take a decision thereon in accordance
with law within one month from the date of receipt of a copy of this
judgment. Till such time, recovery proceedings against the
petitioner shall be kept in abeyance. It is open to the petitioner to
rely on Ext.P3 before the appellate authority. The petitioner will
produce a copy of this judgment before the 3rd respondent as soon
as it is received.
Sd/-
(K.M.JOSEPH, JUDGE)
aks
// TRUE COPY //
P.A. TO JUDGE