MALABAR PRODUCE EXPORT CO Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER was an assessee under the KGST Act. In this writ petition, the main prayer of the petitioner is that an amount of Rs.37,500/- recovered from them on the basis of the recovery certificates issued for realising the tax under the CST Act for the years 1968-69, 1969-70, 1971-72 and 1975-76 should be refunded. It is seen that by Ext.P1, the appeal filed by the petitioner against an assessment under the CST Act for the year 1968-69 and 1969-70 was allowed by the Tribunal and the Tribunal directed the issuance of modified assessment orders. In the T.R.C filed by the Revenue against Ext.P1 order, this Court set aside the Appellate Tribunal's order and remitted the matter to the assessing authority for fresh determination.

(2.) THE case of the petitioner is that pursuant to the remand by Ext.P2, although they were heard by the assessing authority in 1997, fresh assessment orders have not been issued so far. It is stated that inspite of it, pursuant to the revenue recovery requisitions issued, Rs.37,500/- was realised. Subsequently, revenue recovery proceedings initiated against the petitioner were challenged in OS No.22/91 and the Additional Munsiff's Court, Kozhikode decreed the suit and set aside the recovery certificates as per Ext.P4 decree. On the strength of the decree, petitioner applied for refund of the amount and finally after two rounds of litigation, refund has been rejected by Ext.P18 order. In Ext.P18, the reason stated by the Assistant Commissioner is that there is no evidence before him to show that the remittance made by the petitioner was exclusively for the dues against 1968-69 and 1969-70.

(3.) IN so far as the assessment years 1971-72 and 1975- 76 are concerned, there is nothing to indicate that the assessment orders have become final. If that be so, it will be open to the assessing authority to recover that liability from the amount already remitted for the liability of 1968-69 and 1969-70.