M/S. Sdf Industries Ltd vs The Deputy Commissioner Of State ...
2022 Latest Caselaw 9039 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                &
         THE HONOURABLE MR.JUSTICE BASANT BALAJI
 WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                     OP (TAX) NO. 28 OF 2022
        (Int.P 25/2022 in TA(VAT) 31/22 of KVAT Tribunal,
                           Kozhikode)
PETITIONER/S:

            M/S. SDF INDUSTRIES LTD
            AGED 58 YEARS
            CHANDRA NAGAR, PALAKKAD, REPRESENTED BY SUNNY
            MATHEW, SENIOR LAISON EXECUTIVE, PIN - 67800
            BY ADVS.
            HARISANKAR V. MENON
            MEERA V.MENON
            R.SREEJITH
            K.KRISHNA


RESPONDENT/S:

    1       THE DEPUTY COMMISSIONER OF STATE TAXES
            STATE GST DEPARTMENT, PALAKKAD, PIN - 678001
    2       THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
            CHEROOTTY ROAD, KOZHIKODE 673 032, REPRESENTED BY
            ITS ASST. SECRETARY, PIN - 673032
OTHER PRESENT:

            SR GP V K. SHAMSUDHEEN


     THIS OP TAX HAVING COME UP FOR ADMISSION ON 27.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (TAX) NO. 28 OF 2022

                                      -2-




                         S.V.BHATTI
                     & BASANT BALAJI, JJ.

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                OP (TAX) NO. 28 OF 2022
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                          JUDGMENT

(Dated this the 27th day of July 2022)

Basant Balaji J.,

On 24.6.2022 this Court ordered notice. Adv.V.K.Shamsudheen accepted notice and sought time to get instructions in the matter. Today, we have heard Adv.Harishankar V. Menon and Adv.V.K.Shamsudheen, the learned Government Pleader, for the parties.

2. The O.P.(Tax) case is filed questioning the conditional order of stay granted by the Tribunal in Interlocutory Petitions in respective Appeal for appreciating the alleged onerous condition imposed by the Tribunal. The following portion OP (TAX) NO. 28 OF 2022

from the impugned order is extracted below :

"(a) This petition stands allowed.

(b) The recovery proceedings are stayed till the disposal of the Appeal or for six months, whichever happens earlier on the petitioner depositing 20% of the disputed amount of tax and on furnishing simple bond for the balance amount within one month from the date of receipt of copy of this order.

(c) The appeal will be notified for hearing on priority basis."

3. Adv.Harisankar placed strong reliance on the order

in Ext.P5 in O.P.Rev.136/2016 to contend that this Court,

after taking note of all the attendant circumstances in a

matter similar to the present, held that the value of de-

mineralised water has to be taken as 30 ps. per litre.

Applying the said adjudication as in the nature of

declaration, the condition to deposit 20% of the disputed

amount of tax is onerous and seeks the indulgence of the OP (TAX) NO. 28 OF 2022

Court to grant firstly, unconditional stay and secondly, put

the petitioner to a reasonable condition for availing the

benefit of stay during the pendency of the appeal.

4. Adv.Shamsudheen opposes the modification of

condition imposed by the Tribunal. Firstly, it is argued that

the order in Ext.P5 may not be taken as conclusive in all

cases and circumstances. The substantial issue is canvassed

before the Tribunal. By taking note of the controversy of

adjudication before the Tribunal, the Tribunal rightly

ordered deposit of 20% of the disputed amount of tax. It is

argued without prejudice to the first argument that, the

petitioner is not entitled for unconditional stay of recovery

of disputed tax during the pendency of the appeal.

5. We have perused the records and taken note of the OP (TAX) NO. 28 OF 2022

respective contentions put forward by the counsel. OP(Tax)

cases are filed questioning the conditional interim order of

stay. In our jurisdiction under Article 227 of the Constitution

of India, we are not expected to interfere or interdict the

orders of the Tribunal unless manifest injustice is pointed out

and the discretion is not exercised commensurate to the

controversy pending before the Tribunal. In our considered

view, the Tribunal has rightly held that the petitioner ought

to be put to condition for availing the stay of recovery of

demanded tax. However, the condition directing deposit of

20% of the disputed amount of tax at this stage and in the

circumstances of the case, appears to be harsh and onerous.

Hence, we modify the order as "depositing 15 paise per litre

on the total quantity of de- mineralised water and furnishing

simple bond from the balance amount within four weeks

from today". The order shall not be understood as this Court OP (TAX) NO. 28 OF 2022

expressed a view on the merits of the matter.

Original Petition is disposed of as above.

Sd/- S.V.BHATTI,JUDGE

Sd/- BASANT BALAJI, JUDGE dl/ OP (TAX) NO. 28 OF 2022

APPENDIX OF OP (TAX) 28/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF ASSESSMENT ORDER FOR THE YEAR 2016-17 DTD. 30-11-2018 Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE DY. COMMISSIONER (APPEALS), PALAKKAD DTD. 22-11-2019 Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 23-02-

Exhibit P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 23-02-2022 Exhibit5 COPY OF ORDER IN O.T.REV NO. 136/2016 OF THIS HON'BLE COURT DTD. 27-09-2019 Exhibit P6 COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DTD. 28-03-2022