Mas Make Polymers vs. The Commercial Tax Officer - Kerala High Court, 27 October 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNE AY, THE 27TH DAY OF OCTOBER 2021/5TH KARTHIKA, 1943 WRIT APPEAL NO.1378 OF 2021 (AGAINST THE JUDGMENT dated 12.8.2021 IN W.P.(C)No.16523/2021 OF HIGH COURT OF KERALA, ERNAKULAM) APPELLANT/PETITIONER: MAS MAKE POLYMERS, VELLALACHIPOTTA, ELAPPULLI, EDUPPUKULAM P.O., PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, K.P.ABDUL SALEEM. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.RAHUL A. SMT.APARNA ANIL RESPONDENTS/RESPONDENTS: 1 THE COMMERCIAL TAX OFFICER, (NOW RE-DESIGNATED AS STATE TAX OFFICER), 3RD CIRCLE, GST OFFICE COMPLEX, NEAR CIVIL STATION, PALAKKAD. 2 THE DEPUTY COMMISSIONER (APPEALS), STATE GST DEPARTMENT, GST OFFICE COMPLEX, NEAR CIVIL STATION, PALAKKAD. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No.1378 of 2021 2 JUDGMENT Basant Balaji, J.

The appellant who was the petitioner in W.P.(C) No.16523 of 2021 has filed this writ appeal, challenging the judgment of this court dated 12.08.2021. The petitioner filed the writ petition with the following prayers:- “(i) Issue a writ of certiorari or other appropriate writ or orders to call for the records leading to the issue of Ext.P3 order and strike down and quash the same; (ii) Issue a writ of mandamus or other appropriate writ or orders directing the 2nd respondent to consider and dispose of Ext.P2 to Ext.P2(b) appeals, in accordance with law after hearing the petitioner; (iii) Issue a writ of mandamus or other appropriate writ or orders directing the 1st respondent or any person acting on his behalf not to take coercive steps for the recovery of the demand as per Ext.P1 to Ext.P1(b) orders and (iv) Issue such other writ, order, or direction, which this Hon'ble Court deems fit and

W.A. No.1378 of 2021 3 necessary in the interest of justice.”

The petitioner was a dealer registered under the provisions of Kerala Value Added Tax - 2003 on the Roles of the 1st respondent. The petitioner filed returns under self assessment for the years, 2010-11, 2011-12 and 2012-13, but the 1st respondent re-opened the self assessments in respect of the above mentioned years under Section 25 of the KVAT Act (hereinafter referred to as the 'Act' for short), alleging that the petitioner has mis-classified the rate of tax on thermocol disposable plates sold at 4%, whereas tax ought to have been paid at the rate of 12.5% as applicable to unclassified items under entry 103 (Residuary entry) of notification S.R.O. No.82 of 2006. The 1st respondent imposed a penalty of Rs.2,10,112/-, Rs.21,89,746/- and Rs.29,94,862/- respectively under Section 67 of the 'Act' for the years 2010-11, 2011-12 and 2012-13 respectively.

Aggrieved by the penalty orders, appeal was

W.A. No.1378 of 2021 4 filed before the 2nd respondent. The 2nd respondent took up the appeal and dismissed the same by order dated 14.10.2020, produced as Ext.P3 in the writ petition.

The petitioner impugns Ext.P3 and filed Writ Petition (C) No.16523 of 2021 without filing statutory 2nd appeal before the Appellate Tribunal under Section 60 of the 'Act'.

Before the learned single judge, the petitioner contended that, the 1st Appellate Authority did not consider the legal grounds raised in the appeal and prayed for setting aside the impugned order and remitting to the 2nd respondent for re- consideration.

The learned senior Government Pleader argues that the petitioner has an effective alternative remedy of filing 2nd appeal before the Tribunal against Ext.P3 under Section 60 of the 'Act' and without exhausting the said remedy, the petitioner ought not have approach this Court impugning the order, not

W.A. No.1378 of 2021 5 merely on law but on facts involved also.

The counsel for the petitioner conceded before the learned single judge that the petitioner has got alternative effective remedy by way of 2nd appeal, but he chose to challenge the impugned Ext.P3 order before this Court, as the challenge is based on the question of law. The learned single judge took note of the fact that the pleadings and the records clearly show that the attempt of the petitioner is to challenge Ext.P3 order on its merits and challenge on the very merits of the case is not maintainable under Article 226, when the efficacious statutory remedy is available. Therefore, the learned single judge went on to hold that the petitioner is at liberty to invoke the alternate remedy available under law. It was also safeguarded in the judgment that Ext.P1 assessment shall remain deferred for a period of one month from the date of receipt of the copy of the judgment to enable the petitioner to file the statutory 2nd appeal.

W.A. No.1378 of 2021 6 Challenging the said judgment of the learned single judge,

this appeal

is filed

by the appellant/petitioner.

The contention raised by the counsel for the appellant before us is that, the learned single judge relegated the appellant to seek statutory remedy considering the fact that the 2nd respondent has passed Ext.P3 in clear violation of the Principles of Natural Justice. He also pointed out that the binding judgments relied on by the appellant are in favour of the appellant and if the appellant is directed to pursue the alternate remedy, it would be an empty formality. We have considered the contentions raised by the learned counsel for the appellant. The main contention raised by the counsel for the appellant is that, the Principles of Natural Justice are violated in passing Ext.P3 and that the binding precedence of the Apex Court are given a go bye. Having considered the contentions raised by the

W.A. No.1378 of 2021 7 counsel for the appellant as well as the learned Government Pleader appearing for the respondents, we are of the view that the learned single judge has rightly disposed of the writ petition directing the appellant to approach the 2nd Appellate Authority, challenging Ext.P3. When an efficacious alternate remedy is available to the appellant, he cannot rush to this Court bypassing the same. He has to first exhaust the alternate remedies before approaching this Court. The contentions raised assailing the impugned order, directly under Article 226 of the Constitution of India are not stand alone or singular to the point of law. In our view the merits on facts and law are examined before a view is taken. This exercise ought to be avoided under Article 226 except in exceptional cases. The case in hand does not merit as one warranting our interference. De hors appellate remedy. The legal grounds are left open for consideration by the Tribunal in the 2nd appeal the petitioner files

W.A. No.1378 of 2021 8 before the Tribunal. For the above reason, we find no reason to interfere with the judgment of the learned single judge, hence this writ appeal is dismissed. S.V.BHATTI, JUDGE BASANT BALAJI, JUDGE ss