~~~~~~~~~~~ The basic issue involved in this case is with regard to the question whether the commodity dealt with the petitioner, that is, margarine would attract only a lesser rate of tax of 4%, treating the same as 'edible oil' coming under the 3rd schedule to the Kerala Value Added Tax Act or will it attract higher rate of tax of 12.5%, by virtue of the relevant entry. 2. Being aggrieved of Ext.P1 assessment order, the petitioner moved the appellate authority, which however did not turn to be successful, as the appeal was dismissed as per Ext.P2. Met with this situation, the petitioner has already approached the Kerala VAT Tribunal by filing Ext.P3 appeal along with Ext.P4 petition for stay. After considering the Interlocutory Application for stay, the Tribunal passed Ext.P5 order dated 29.09.2014 dismissing the stay petition, however, listing the appeal to be heard on 29.10.2014. This made the petitioner to approach this Court, challenging the coercive proceedings, mainly contending that, if there was no merit in the Interlocutory Application for stay, appropriate orders could and W.P.(C) No.28274/2014 2 should have been passed in the appeal itself. It is stated that, interim stay has already been granted by this Court till finalisation of the appeal in similar matters, as borne by Ext.P6 judgment dated 10.7.2014 in W.P.(C) No.16042/2012.
3. Now the point to be considered is whether there should be a direction to have the appeal to be finalised, granting interim order of stay till finalisation of the appeal as above.
4. Heard the learned Government Pleader as well.
5. The issue raised by the petitioner with regard to the actual rate of tax to be satisfied in respect of the commodity 'margarine', had already come up for consideration before this Court and as per the judgment dated 27.3.2014 in W.P.(C) No.16328/2013 (rendered by me), it was held that the concerned commodity would attract higher rate of tax at 12.5%. The reliance sought to be made by the petitioner on the verdict passed by the Apex Court reported in Aluva Sugar Agencies v. State of Kerala [(2011) 45 VST 1], with reference to the relevant provision under the KGST Act, was also referred to in the above judgment. It was after considering all the relevant aspects, that the declaration of law was made by this Court.
W.P.(C) No.28274/2014 3 Being aggrieved of the said verdict, the assessee approached the Division Bench of this Court by filing W.A.No. 577 of 2014. It is brought to the notice of this Court that the matter was considered in detail by the Division Bench and interference was declined. The Writ Appeal stands dismissed as per judgment dated 30.10.2014 in W.A.No. 577/2014.
6. In the above circumstances, this Court finds that there is absolutely no merit or bonafides in the Writ Petition. None of the grounds raised in the Writ Petition does serve the purpose. This Court does not find any reason to direct consideration of the appeal as the appeal has become redundant, by virtue of the finality on the issue with regard to the rate of tax. If any substituting issue is there, it is always open for the appellate authority to consider and pass appropriate orders on Ext.P3 appeal as expeditiously as possible.
With the above observation, interference is declined and Writ Petition is dismissed.
Sd/-
ps/31/10/2014 P.R.RAMACHANDRAMENON, JUDGE.