The grievance of the petitioner is against the conditional stay orders passed in the appeals, for the assessment years 2009-10 and 2010-11. In both the years by Ext.P9, condition was imposed for payment of 35% of the demand, for each of the said years. The petitioner is aggrieved by the same. The petitioner had applied for compounding and was granted the same as provided under Section 8 of the KVAT Act. The petitioner is a works contractor who had registration under the KVAT Act and CST Act, but had not made any imports. An assessment order came to be passed, only, in the context of the assessing officer finding that the petitioner was a registered dealer under the CST Act and hence, the petitioner was excluded from the compounding provision under Section 8(a)(i) of the KVAT, which disentitles a dealer registered under the provisions of the CST Act, and who is not an importer from exercising such option. The appeal is also confined to that issue. W.P.(C) No. 15135 of 2014 2
2. The learned counsel places relies on a Division Bench decision of this Court in State of Kerala v. A.N. Sivakumar in [O.T.R 25 of 2013] dated 09.01.2014 wherein, this Court found that the exclusion from concessional rate, applies to a works contractor, only when both these conditions are satisfied. Hence, a dealer registered under the CST Act, if not making any import in the relevant assessment year would be entitled for compounding. In such circumstance, there is no reason why the dealer should be asked to remit the 35% of the balance tax and interest demanded; especially since the dealer is said to have paid as per the compounded rate.
3. The Writ Petition is disposed of setting aside Ext.P9 order directing consideration of the appeal and the recovery for the subject year shall be kept in abeyance pending disposal of the appeal.
The Writ Petition is disposed of. The parties are left to suffer their respective costs.
Sd/-
K. VINOD CHANDRAN, JUDGE SB // True Copy // P.A To Judge.