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TMI Blog2019 (4) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge the orders of assessments as well as the order of penalty. - W. A. No. 786 OF 2019, W. P. (C) No. 1129, 4603 OF 2016 And W. P. (C) No. 35345 OF 2017 - - - Dated:- 11-4-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The Petitioner : ADVS. SRI. VIJAYAN. K. U. SRI. K. V. VIMAL For The Respondents : ADV. SR. GOVT. PLEADER SRI. V. K. SHAMSUDHEEN JUDGMENT Abdul Rehim, J: W.A. No.786/2019 is an appeal instituted against judgment of the Single Judge in W.P.(C) No.3978/2019, dated 26th February, 2019. The appellant challenged Ext.P8 order of assessment finalized against him with respect to the year 2015 2016, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han those made of PVC, sinks, wash basins, wash basin pedestals, taps, bath showers, bidets, water closet pans, flushing cisterns, urinals, commodes, man-hole covers used in connection with drainage and sewerage disposals, part and accessories thereof. Under Sl. No.101 (1) Thirteen specified items are included with specific HSN codes noted with respect to 12 items thereof. One of the contention raised is that the articles dealt with by the petitioner is not included in the above said 12 specified items. It is contended that, under entry 3 (2) of schedule III of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the 'KVAT Act' for short) the articles included therein is to be taxed at 4% (subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 5/2006. Through Ext.P5 judgment the said appeal was disposed of by this court by directing the Commissioner to examine the issue after affording opportunity of hearing to the appellant/petitioner. It is contended that, despite Ext.P5 judgment passed as early as on 26-05-2008, the Commissioner has not so far clarified the position and hence the impugned assessments as well as orders imposing penalty are unsustainable. 5. It is pertinent to note that, the orders imposing penalty with respect to the years 2009-2010 to 2013 to 2014 was subjected to challenge before this court on an earlier occasion, at the instance of the appellant/petitioner in W.P (C) No.4222/2015. Through judgment of this court dated 13-02- 2015, a learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (C) No.15102/2015. The Division Bench, while dismissing the writ appeal through judgment dated 5th August 2015 had confirmed the view taken by the learned Judge that an effective statutory remedy is available and that unless there is any exceptional circumstances like challenge against statutory provisions or violation of principles of natural justice or want of jurisdiction, the writ petition filed without exhausting such remedies need not be entertained. In the said judgment the Division Bench held that the issue involved is regarding classification of the products in question and the issue is not a pure question of law, but is a mixed question of fact and law. Such a dispute should be resolved by the statutory fact finding authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated period. He also sought indulgence of this court to direct the appellate authority to consider the requests for staying collection and recovery of the demands in dispute, taking note of the fundamental issue with respect to classification of the goods and the rate of tax applicable. We are of the view that indulgence of this court can be shown to facilitate the appellant/petitioner to seek appropriate statutory remedy. 9. Hence, while dismissing the above writ appeal and the writ petitions, we make it clear that the appellant/petitioner will be at liberty to challenge the orders of assessments as well as the order of penalty impugned herein in W.P (C) Nos.1129/2016, 35345/2017 and 3978/2019 before the appropriate appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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