TMI Blog2002 (12) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, among other matters, the rate of tax on paper increased by the above referred Ordinance was retained. The petitioner's case is that the petitioners were not aware of the increase in the rate of tax from 4 per cent to 8 per cent by the Ordinances and therefore, they have not remitted tax at the higher rate from January 1, 2002 onwards. According to them, the assessing officers were also not aware of the Ordinances and they did not demand tax by making provisional assessment or provisional demand based on monthly returns filed by the petitioners. Since the petitioners were not aware of the amendment, they have not collected the tax at 8 per cent from January, 2002 onwards and therefore they should not be compelled to pay tax demanded by the assessing officer at higher rate is their contention. As the issue raised in all the original petitions are one and the same, all the original petitions were consolidated and heard together and hence disposed of by this common judgment. 2.. I heard Sri Mohan Parasaran, and other learned counsel appearing for the petitioners and the learned Government Pleader, Sri Sojan James, appearing for the respondents. The first contention raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Ordinance. However, I do not think, this objection can be sustained because the petitioners themselves have produced exhibit P1 which is a gazette publication of the Ordinance on December 31, 2001. The petitioners have no case that exhibit P1 gazette was not published by the Government. The next question is what is the effect of this Ordinance on account of nonpresentation of the same before the Legislature on reassembly of the Legislature. Article 213(2)(a) of the Constitution is as follows: "213. Power of Governor to promulgate Ordinances during recess of Legislature.-(1).......... (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of retrospective amendment by the Amendment Act. Though, the petitioners contend that there is no "publication" of the Ordinances, I do not think, the same is correct because every publication by the Government is through gazette and gazette copies are produced by the petitioners themselves. The petitioners have no case that the Ordinances were not published in the gazette. Of course, publication of the gazette in the usual course is by sending it to Government offices and by making it available to those who subscribe it. The Supreme Court in Collector of Central Excise v. New Tobacco Co. [1998] 109 STC 376; (2001) 9 KTR 201 held that mere printing of gazette is not publication. However, in this case the petitioners have no case that the gazette copy of Ordinance produced by them was not published by the Government. The gazette notifying Ordinance No. 37 of 2001 was in fact published. The petitioners contend that like them the departmental officers were also unaware of the increase in tax by the Ordinance published in gazette and therefore, they contend that the demand of tax cannot be pressed against them. I do not think, ignorance of the departmental officers or the lack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.. The petitioners relied on a large number of decisions of the Supreme Court and of this Court in support of their contentions. The decisions relied on are mainly on the question of validity of retrospective amendment. The decision by this Court cited by the petitioners is that of Hotel Elite v. State of Kerala [1988] 69 STC 119. That was a case where a retrospective amendment introducing turnover tax was not enforced by virtue of the concession made by the Advocate-General on behalf of the State before the court and the court accepted the same. This position cannot be canvassed as a proposition against validity of retrospective amendment. On the other hand, the Government Pleader cited the decision of this Court in State of Kerala v. Mega Traders [1997] 107 STC 1 wherein this Court has upheld a retrospective amendment on the levy of tax on agarbathis retrospectively. While upholding the retrospective amendment, this Court held that there was an earlier clarification issued by the Government on the very same lines as the levy and therefore it cannot be said that retrospective legislation was arbitrary or unreasonable as the dealers had notice of the earlier clarification issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ordinarily passed on to the customer and in the event of accepting the retrospective amendment a liability would be created without affording any opportunity to the hoteliers to pass on the incidence of the tax." However, this position canvassed by the petitioners does not apply here because in effect the increase in tax was not retrospective. In this case, as already noticed, the increase in rate of tax though retrospectively brought under the Kerala General Sales Tax (Amendment) Act, 2002, it is only a regularisation of an amendment introduced prospectively under Ordinance No. 37 of 2001 and retained by Ordinance No. 4 of 2002. Even if the impugned Amendment Act was not retrospective, the rate of tax on paper stood increased under entry 106 of the First Schedule to the Kerala General Sales Tax Act from 4 per cent to 8 per cent by virtue of the two Ordinances stated above until the Kerala General Sales Tax (Amendment) Act, 2002 replaced the Ordinances. It is a well-settled position by the decision of the Supreme Court in Premier Enterprises v. Commercial Tax Officer [2001] 121 STC 43; (2001) 9 SCC 753, that the Legislature has the competence to make retrospective levy of t ..... 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