IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 36223 of 2010() 1. MS.MAJEED ASSOCIATES, ... Petitioner Vs 1. COMMERCIAL TAX OFFICER, ... Respondent 2. MANAGER, 3. KERALA VAT APPELLATE TRIBUNAL, For Petitioner :SRI.P.RAGHUNATH For Respondent : No Appearance The Hon'ble MR. Justice C.K.ABDUL REHIM Dated :17/12/2010 O R D E R C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.36223 of 2010-C ---------------------------------------- Dated this the 17th day of December, 2010. J U D G M E N T
Aggrieved by Ext.P1 order imposing penalty under
Section 67(1) of the Kerala Value Added Tax Act (KVAT
Act), the petitioner had preferred second appeal before the
3rd respondent Tribunal, as evidenced from Ext.P3. Ext.P4
is the stay petition filed along with the appeal. Grievance of
the petitioner is that without considering pendency of the
appeal, coercive steps of recovery has now been initiated as
per Ext.P5 notice.
2. It is stated that the issue pertains to rate of tax
applicable to the products ‘Ujala Supreme’ and ‘Ujala Stiff
and Shine’ dealt with by the petitioner. The question
regarding the rate of tax applicable to the product, is
pending final decision before this Court as well as before
the Hon’ble Supreme Court in different matters. It is
further pointed out that this Court had granted stay in many
identical cases, wherever appeals are pending against the
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assessments, subject to condition of payment of 1/3rd of the
amount in dispute. Since the impugned order is one
imposing penalty, which is issued on the basis of an
interpretation regarding the rate of tax applicable issued
when the matter has not been finally settled. Hence it is
totally unsustainable, is the contention raised. Learned
counsel for the petitioner relies on a decision of the Hon’ble
Supreme Court in E.I.D Parry (I) Ltd. V. Assist.
Commissioner of Commercial Taxes and another
[(2000) 117 STC 457], in support of the above contention.
3. Having considered the fact that in identical
matters this Court had already issued directions to the
appellate authority to consider the appeal itself, I am of the
view that the matter can be disposed of directing the
appellate authority to consider and pass appropriate orders
on the appeal and till then to stay the recovery of the
amounts covered under Ext.P1.
4. Accordingly, the writ petition is disposed of
directing the 3rd respondent Tribunal to consider and pass
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orders on Ext.P3 appeal, after affording an opportunity of
hearing to the petitioner, as early as possible, at any rate
within a period of three months from the date of receipt of a
copy of this judgment.
5. Till such time orders are passed by the Tribunal
as directed above, recovery of the amount of penalty
covered under Ext.P1 shall be kept in abeyance.
P.A to Judge
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