The prayers raised in the writ petition are in the following terms:
“a. Issue a writ of certiorari or such appropriate writ, direction or order quashing Ext.P5 order dated 15.07.2014 passed by respondent No.3.
b. issue a writ of certiorari or such appropriate writ, direction or order modifying that part of Ext.P5 order dated 15.07.2014 passed by respondent No.3 holding that tax is payable on goods imported from outside the country under Section 8(a)(ii) of the KVAT Act.
c. declare that Section 8(a)(ii) of the KVAT Act is unconstitutional in as much as it provides for levy of tax on goods imported from outside the country.
d. declare that the term 'outside the state' used in Section 8(a)(ii) of the KVAT Act does not include 'outside the country'.”
2. When the liability was sought to be mulcted upon the petitioner in respect of various imports effected by the petitioner by sending Ext.P1 pre-assessment notice by the second respondent, the petitioner submitted detailed reply vide Ext.P2 contending that the import from other countries will not W.P.C. No. 31597 of 2014 -2-
constitute import from outside the State as envisaged under the relevant provisions of law and hence that the petitioner is not liable to meet the alleged tax liability. However, without properly considering the reply in the light of the legal position made clear by this Court, the assessment was finalized by the 2nd respondent as per Ext.P3 order dated 27.07.2012.
3. Being aggrieved of the said order, the petitioner has preferred Ext.P4 appeal before the 3rd respondent. The law declared by this Court as per the decision reported in Fr. William Fernandez v. State of Kerala & Others [1999] 115 STC 591 (Ker) was brought to the notice of the appellate authority by the petitioner. Even though a reference was made, absolutely no discussion was done by the appellate authority who simply remarked that, import from outside the State will also include import from other countries. However, the assessment has been set aside and the matter has been remanded as per Ext.P5 order. The grievance of the petitioner is that, the observation made by the appellate authority will naturally place a hurdle on the way of the assessing authority in independently considering the matter.
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4. Heard the learned Government Pleader as well.
5. In view of the fact that, Ext.P5 order passed by the appellate authority is only a 'remand order' and since the matter has to be considered afresh by the assessing authority, the writ petition is disposed of, making it clear that, re-assessment shall be done by the same authority, untrammelled by the observations made by the appellate authority, as to the scope and applicability of the contention raised by the petitioner. This shall be done in accordance with law, also with reference to the verdict passed by this Court as cited supra. The proceedings as above shall be finalized at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment.
The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the concerned respondent for further steps.
P.R. RAMACHANDRA MENON, JUDGE.
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