High Court Kerala High Court

M/S.J&J Timbers vs The Assistant Secretary on 15 October, 2010

Kerala High Court
M/S.J&J Timbers vs The Assistant Secretary on 15 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30027 of 2010(C)


1. M/S.J&J TIMBERS, 23/418, MAIN ROAD,
                      ...  Petitioner

                        Vs



1. THE ASSISTANT SECRETARY,
                       ...       Respondent

2. THE DEPUTY COMMISSIONER (APPEALS),

3. THE ASSISTANT COMMISSIONER,

4. THE INTELLIGENCE OFFICER (IB),

                For Petitioner  :SRI.T.M.SREEDHARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :15/10/2010

 O R D E R
                   C.K.ABDUL REHIM, J
               -------------------------------------
               W.P(C) No. 30027 of 2010-C
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        Dated this the 15th day of October, 2010.

                       J U D G M E N T

Issue involved in this writ petition pertains to penalty

imposed through Ext.P1 order, under Section 45A of the

Kerala General Sales Tax Act (KGST Act). Appeal filed

against Ext.P1 order was disposed of through Ext.P2. The

appellate authority had set aside the order of penalty and

remanded the matter to the 4th respondent for passing fresh

orders. Against Ext.P2 further appeal was filed before the

1st respondent Tribunal. Through Ext.P4 order the second

appeal was dismissed holding that there is no infirmity in

the order passed by the first appellate authority. Pointing

out provisions contained in Section 34 of the KGST Act,

which stood as amended with effect from 23.7.2001, it is

contended by the petitioner that the Deputy Commissioner

(first appellate authority) has no power to remand the

matter for passing fresh orders. Attention of this Court was

W.P(C) No. 30027 of 2010-C 2

drawn to the provisions contained in Sub section 3 of

Section 34.

2. However, pointing out the above said aspect, the

petitioner had already submitted a rectification application

before the first respondent Tribunal, under Section 43 of

the KGST Act. The said rectification application is pending

consideration and disposal before the Tribunal. Present

grievance of the petitioner is that without considering

pendency of Ext.P5 petition, the 4th respondent is now

initiating steps for passing fresh orders in compliance with

the directions contained in Ext.P2 order.

3. Considering the facts and circumstances and also

the legal position as enumerated, I am of the opinion that

this writ petition can be disposed of directing appellate

Tribunal to expedite consideration of Ext.P5 petition and till

then to restrain the 4th respondent from passing fresh

orders.

4. In the result, the writ petition is hereby disposed

of directing the 1st respondent Tribunal to consider and pass

W.P(C) No. 30027 of 2010-C 3

orders on Ext.P5 rectification application, after affording an

opportunity of hearing to the petitioner, at the earliest

possible, at any rate within a period of six weeks from the

date of receipt of a copy of this judgment.

5. Till such time orders are passed by the 1st

respondent as directed, the 4th respondent is restrained

from passing any fresh orders consequent to Ext.P2

appellate order.

Sd/-

C.K.ABDUL REHIM
JUDGE

//True Copy//

P.A to Judge

ab

W.P(C) No. 30027 of 2010-C 4