M/S. Cochin Sanitary Stores vs. Assistant Commissioner - Kerala High Court, 26 February 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 WP(C).No. 3978 of 2019 PETITIONER/S: M/S. COCHIN SANITARY STORES, 40/3388, T.D ROAD, ERNAKULAM, KOCHI 682 031, REPRESENTED BY ITS PARTNER K.J SUDHAKARA KAMATH. BY ADV. SRI.VIJAYAN. K.U. RESPONDENT/S: 1 ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX, SPECIAL CIRCLE, MATTANCHERY AT ALUVA 683101 2 INSPECTING ASSISTANT COMMISSIONERE, STATE GOODS AND SERVICES TAX, MATTANCHERY 682 002. 3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, STATE GOODS AND SERVICES TAX DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. OTHER PRESENT: GP DR/ THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C). No. 3978 of 2019

JUDGMENT The petitioner trades in water and sanitary equipment, allegedly made of brass; that is, articles of brass. Claiming so, the petitioner has sought the articles it trades in to be classified under entry 3(2) of Schedule III, appended to the KVAT Act, 2003, attracting tax at 4 or 5 per cent.

But the Revenue, on the other hand, wanted it to be treated as articles of brass under entry 101 of SRO 82 of 2006, attracting 12.5 per cent. After providing an opportunity of hearing to the petitioner, the assessing authority has rendered Ext.P8 order of assessment. Assailing that, the petitioner has filed this writ petition.

At the outset, the Government Pleader has raised an objection: the petitioner has an efficacious alternative remedy.

In response, the learned counsel for the petitioner has elaborately argued on the merits. When I repeatedly queried with him why the alternative remedy could not be efficacious, he has nevertheless insisted that the assessing authority has rendered Ext.P8 on an erroneous reading of not only facts, but also law. According to -3- him, he has even ignored a binding judgment of this Court, that is Ext.P5. 5. To elaborate, the learned counsel submits that the goods the petitioner trades in come under HSN 7419.99.30 and they attract only 5 per cent tax. In fact, in 2006, through Ext.P3, the then Commissioner clarified this issue. But later, when the successor officer tried to trifle through the Ext.P4 with that clarification, this Court in Ext.P5 judgment has upheld the Ext.P3. According to the learned counsel, under these circumstances, the respondent authorities ought not have restored the department's plea, already rejected as set out in Ext.P4. For that got nullified through the Ext.P5 judgment of this Court.

I reckon the petitioner may have a good case on merits. That does not mean that we should ignore the statutory remedies available before its knocking the doors of this Court. Despite my repeated queries, as I have already mentioned, the petitioner's counsel has simply persisted with the merits of the matter and has not supplied any valid reason why I should entertain this writ

-4- petition disregarding a statutory remedy.

I reckon the writ petition raises issues that can be addressed eminently by the appellate authority, as set out in the KVAT Act. Under these circumstances, without adverting to the merits, I close the writ petition, leaving it open for the petitioner to exhaust the statutory remedy. At any rate, as the petitioner has bona fide been prosecuting this writ petition till now, it is only fair that the authority defer coercive steps for two weeks to enable the petitioner to approach the statutory appellate authority. DAMA SESHADRI NAIDU JUDGE das APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE RELEVANT PORTION OF THE SL.NO. 101 IN THE RNR LIST OF SRO 82/2006. -5- EXHIBIT P2OF THE REQUEST FOR CLARIFICATION DATED 4/10/2005 ON RATE OF TAX APPLICABLE TO ARTICLES OF BRASS. EXHIBIT P3OF THE CLARIFICATION NO. C8- 48888/2005/CT DATED 08-03-2006. EXHIBIT P4OF THE RE-CLARIFICATION NO. C8-48888/2005/CT DATD 27-04-2006. EXHIBIT P5OF THE JUDGMENT IN O.A NO. 5/2006 OF THE HONOURABLE HIGH COURT OF KERALA DATED 26-05-2008. EXHIBIT P6OF THE EXCAPED ASSESSMENT NOTICE NO. 32150213864/2015-16 DATED 11/12/2018 EXHIBIT P7OF THE REPLY FOR THE YEAR 2016-16 DATED 26/12/2018. EXHIBIT P8OF THE ESCAPED ASSESSMENT ORDER FOR 2015-16, DATED 19/1/2019.