High Court Kerala High Court

Smt.M.A.Suhara vs State Of Kerala on 10 November, 2008

Kerala High Court
Smt.M.A.Suhara vs State Of Kerala on 10 November, 2008
       

  

  

 
 
  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

WPC.32976/08
: 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