The petitioner is a Public Limited Company engaged in the manufacture/supply of electronic systems and devises and is also a registered dealer under the Kerala General Sales Tax Act (hereinafter referred to as 'the KGST Act' for short) and Central Sales Tax Act. For the assessment years 2000-2001 to 2003-2004 and for the assessment year 2004-2005, the petitioner was served with two orders of penalty dated 13.02.2008. The said orders are produced as Exts.P13 and P14 in the writ petition. Challenging the said orders, the petitioner had preferred revision petition before the 4th respondent. By Exts.P5 and P6 orders dated 21.07.2008, the 4th respondent cancelled the penalty imposed on the petitioner by Exts.P13 and P14 orders. Thereafter, by Ext.P7 notice dated 23.12.2008, the 1st respondent exercised his powers under Section 37 of the KGST Act and sought to set aside Ext.P6 order for the assessment year is 2004-2005 and restore the penalty imposed by Ext.P14 order. Similarly, by Ext.P8 notice dated 29.12.2008, the 1st respondent sought to set aside Ext.P5 order and restore the penalty for the assessment years 2000-2001 to 2003-2004 as imposed in Ext.P13 order. On receipt of Ext.P7 and P8 notices, the petitioner preferred a detailed reply before the 1st respondent and simultaneously challenged the validity of Exts.P7 and P8 notices through W.P.(C).No.1764 of 2009 before this Court. By Ext.P10 judgment dated 21.01.2009, this Court relegated the petitioner to the 1st respondent and directed the 1st respondent to decide the issue based on the objections of the petitioner and, in particular, to decide the aspect of jurisdiction that was raised by the petitioner. In Ext.P12 order dated 01.11.2010, that was thereafter passed by the 1st respondent, he found that the orders of the 1st Appellate Authority cancelling the penalty had been passed by the Deputy Commissioner, and not the Appellate Assistant Commissioner, and therefore the amendments brought about in 2008 under the KGST Act, which provided for a remedy by way of appeal against the orders passed by an Appellate Assistant Commissioner, would not apply to orders passed by the Deputy Commissioner and, hence, the latter orders would not be excluded from the purview of Section 37 of the KGST Act. The jurisdictional challenge raised by the petitioner was therefore rejected by the 1st respondent. Thereafter, the 1st respondent considered the matter on merits and proceeded to set aside Exts.P5 and P6 orders passed by the 4th respondent and restored Exts.P13 and P14 orders. In the writ petition, Ext.P12 order of the 1st respondent is impugned primarily on the ground that the 1st respondent had erred in exercising its jurisdiction under Section 37 while passing Ext.P12 order. The said order is also impugned on merits.
2. A counter affidavit has been filed on behalf of respondents 1 to 4 wherein the sequence of events leading to Ext.P12 order of the 1st respondent has been narrated and the findings of the 1st respondent justified on the basis of the provisions of the Act. The counter affidavit, however, refers to Ext.R1(a) order dated 05.02.2011 that was subsequently passed by the 1st respondent, which took note of the contention of the petitioner with regard to the remedy available to the petitioner against Exts.P13 and P14 orders of penalty and considered it appropriate to permit the petitioner to challenge the said orders before the Deputy Commissioner Appeals, Trivandrum within a period of 30 days from the date of the said order .
4. I have heard Sri.T.M.Sreedharan, the learned senior counsel for the petitioner as also Smt.K.T.Lilly, the learned Government Pleader for the respondents.
5. On a consideration of the facts and circumstances of the case, I find that the 1st respondent, in Ext.P12 order, has correctly found that insofar as Exts.P5 and P6 orders were passed by the Deputy Commissioner and not the Appellate Assistant Commissioner, the said orders were not appealable as per the provisions of the KGST Act as they stood and, consequently, they would not be excluded from the purview of Section 37 of the KGST Act for the purposes of exercise of the revisional powers by the 1st respondent. The petitioner, however, points to Ext.R2(a) order passed by the 1st respondent, which is produced along with the counter affidavit filed on behalf of the respondents, and states that he would be satisfied with the permission granted by the 1st respondent in the said order to prefer an appeal against Exts.P13 and P14 orders before the Deputy Commissioner (Appeals). The learned Government Pleader also does not object to the granting of such a permission to the petitioner to pursue his remedies against Exts.P13 and P14 orders before the Deputy Commissioner (Appeals). In that view of the matter, therefore, I permit the petitioner to withdraw his challenge against Ext.P12 order in the writ petition, by granting him liberty to pursue his appellate remedy against Exts.P13 and P14 orders before the Deputy Commissioner (Appeals), Trivandrum as suggested by the 1st respondent in Ext.R1(a) order dated 05.02.2011. Accordingly, the writ petition is disposed by directing the Deputy Commissioner (Appeals), Trivandrum to call for the files before the 4th respondent, in the revision applications filed before the 4th respondent by the petitioner against Exts.P13 and P14 orders, and to consider the said revision petitions as appeals preferred by the petitioner against Exts.P13 and P14 orders, and pass fresh orders in the matter within a period of three months from the date of receipt of a copy of this judgment. To enable the Deputy Commissioner (Appeals), Trivandrum to do this, I quash Exts.P5 and P6 orders of the 4th respondent and Ext.P12 order of the 1st respondent. The Deputy Commissioner (Appeals), Trivandrum shall also afford a hearing to the petitioner before passing final orders as directed in this judgment. I make it clear insofar as there was a stay against recovery of the amounts confirmed by Exts.P13 and P14 orders in force during the pendency of the writ petition, the said stay order shall continue to remain in force till such time as the Deputy Commissioner (Appeals) passes orders as directed in this judgment and communicates the same to the petitioner.
A.K.JAYASANKARAN NAMBIAR JUDGE mns