M/S.Falcon International Drug ... vs The Asst. Commissioner
2021 Latest Caselaw 9511 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                       WP(C).No.7233 OF 2021(D)


PETITIONER:

               M/S.FALCON INTERNATIONAL DRUG COMPANY,
               38/736, GCDA WAREHOUSING COMPLEX, GANDHI NAGAR,
               KADAVANTHRA, KOCHI-682 020, REP.BY ITS PARTNER,
               MOHAMMED SHAHID.

               BY ADVS.
               SRI.HARISANKAR V. MENON
               SMT.MEERA V.MENON
               SMT.K.KRISHNA

RESPONDENTS:

      1        THE ASST. COMMISSIONER
               4TH CIRCLE, SGST DEPARTMENT, ERNAKULAM,
               KOCHI 682 018

      2        THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
               SGST DEPARTMENT, SALES TAX COMPLEX, THEVARA,
               ERNAKULAM, KOCHI-682 015, REP.BY ITS SECRETARY.

      3        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
               GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695 001.


OTHER PRESENT:

               SMT. THUSHARA JAMES, GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.7233/2021                  2


                              JUDGMENT

Dated this the 22nd day of March 2021

The orders at Ext.P7 series are impugned in this writ petition

for the reason that reasonable opportunity of being heard in the

matter despite specific prayer was not granted by the assessing

authority.

2. I have perused the impugned orders. Despite specific

request by the petitioner, opportunity of hearing was not granted

to the petitioner. The contention of the learned counsel for the

petitioner is in respect of alleged unjust and arbitrary classification

effected by the 1st respondent for demanding higher rate of tax.

Learned counsel for the petitioner has relied on the judgment in

the matter of Heinz India Ltd. vs. State of Kerala ((2009) 19

VST 193 (Ker)) in support of its contention to point out the

misclassification of the product.

3. Learned Government Pleader, after taking notice for

respondents, opposed the writ petition. However, it is seen from

the impugned orders that opportunity of hearing to put forth the

case of the petitioner was not granted to the petitioner. As such,

the impugned orders suffer from violation of principles of natural

justice and therefore, in the interests of justice, the matter

deserves to be remitted to the respondent-authority for

considering afresh. Therefore, this writ petition is disposed of with

the following directions:

The impugned orders at Exts.P7 to P7(b) are quashed and

set aside. The matter is remitted for fresh consideration of the

1st respondent. The petitioner to appear before the 1 st respondent

on 19.04.2021 at 11.30 a.m for hearing and then to abide by

further orders of the 1 st respondent. The 1 st respondent is

expected to conclude the assessment within a period of four

weeks thereafter.

Sd/-

A.M.BADAR

JUDGE

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPIES OF INVOICES ISSUED BY M/S.JOHNSON AND JOHNSON PRIVATE LTD.

EXHIBIT P1 (a) COPY OF INVOICE ISSUED BY M/S.SCHULKE INDIA PRIVATE LTD. CHENNAI

EXHIBIT P1 (b) COPY OF INVOICE ISSUED BY M/S.SCHULKE INDIA PRIVATE LTD. CHENNAI

EXHIBIT P1 (c) COPY OF INVOICE ISSUED BY M/S.SCHULKE INDIA PRIVATE LTD. CHENNAI

EXHIBIT P1(d) COPY OF INVOICE ISSUED BY M/S.SCHULKE INDIA PRIVATE LTD. CHENNAI

EXHIBIT P2 COPY OF ORDER ISSUED BY THE INTELLIGENCE OFFICER, SQUAD NO.I, ERNAKULAM.

EXHIBIT P2 (a) COPY OF ORDER ISSUED BY THE ASST.

COMMISSIONER (APPEALS), ERNAKULAM.

EXHIBIT P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P4 COPY OF ORDER ISSUED BY THE INTELLIGENCE OFFICER, ERNAKULAM.

EXHIBIT P5 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 (a) COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 (b) COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P6 COPY OF OBJECTION FILED BY THE PETITIONER

EXHIBIT P6 (a) COPY OF OBJECTION FILED BY THE PETITIONER

EXHIBIT P6 (b) COPY OF OBJECTION FILED BY THE PETITIONER

EXHIBIT P7 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 (a) COPY OF ORDER ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 (b) COPY OF ORDER ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P8 COPIES OF LABELS OF MICROSHIELD SURGICAL HANDWASH

EXHIBIT P9 COPY OF ORDER HAGEL CAPSULE INDUSTRIES LTD.

VS. COMMISSIONER OF CENTRAL EXCISE 2002 (142) ELT 599, THE CEGAT, MUMBAI RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

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