1. The following questions arise for consideration in this writ petition:-

i) Does the principle of appropriation of payment under Section 55 C of the Kerala General Sales Tax Act, 1963 ('the Act' for short) apply when amounts are deposited 'on account' pursuant to orders of the appellate authority?

ii) Is the final quantification of the amount (after appropriation) for settlement as per the provisions of the Amnesty Scheme under the Act open to challenge after payment by the assessee under Article 226 of the Constitution of India?

2. The petitioner is a Company engaged in the business of manufacture and sale of cement and is a dealer registered under the Act on the rolls of the first respondent and the relevant assessment year is 1998-99. The dispute arose in the appropriation of a sum of Rs.2,00,00,000/- deposited pending appeal before the Deputy Commissioner (Appeals) and a sum of Rs.1,80,99,000/- deposited pending appeal before the Kerala Sales Tax Appellate Tribunal by the petitioner. The petitioner contended that the amounts should be appropriated towards the component of tax in quantifying the amount for settlement as per the Amnesty Scheme under the Act. The first respondent maintained that the amounts deposited by the petitioner could be appropriated only towards interest accrued on the tax under Section 55 C of the Act. The respondents objected to the very maintainability of the writ petition urging inter alia that the order passed as per the Amnesty Scheme under Section 23 B of the Act is not open to judicial review. The petitioner sought to quash Exts.P13, P15 and P18 orders of the first respondent quantifying the amount for settlement as per the Amnesty Scheme and to refund the excess amount collected.

3. I heard Mr. Jayasankar Nambiar.A.K., Senior Advocate as well as Mr.Ramesh Cherian John, Advocate on behalf of the petitioner and Mr.George Mecharil, Government Pleader on behalf of the respondents.

4. The specific directions contained in the conditional orders of stay passed in the appeals before the Deputy Commissioner (Appeals) and the Kerala Sales Tax Appellate Tribunal as well as the terms of deposit are apposite. Ext.P3 order of stay was passed by the Deputy Commissioner (Appeals) under Section 34 (5) of the Act and the operative part of the same reads as follows:-

“The payment of balance tax, sur-charge and interest due is stayed till the disposal of appeal on condition that the petitioner remits Rs.2,00,00,000/- for 1998-99 and Rs.5,00,000/- for 1999-2000 and furnishes security for the balance amount to the satisfaction of the assessing authority within a period of one month from the date of this order.” (emphasis supplied)

Similarly Ext.P5 order of stay was passed by the Kerala Sales Tax Appellate Tribunal under Section 39(6) of the Act and the operative part of the same reads as follows:-

“Upon hearing both sides and also considering the averments in the affidavits filed in support of these petitions, we are of the view that it will be just and proper to grant stay as prayed for by the petitioner for both the assessment years on condition that he shall pay 50% (fifty) of the balance disputed tax for each of the assessment years within a period of one month from today and shall also furnish security for the balance amount due from him. The stay shall remain in force for a period of six months from the date of order.” (emphasis supplied)

The petitioner complied with Exts.P3 and P5 conditional orders of stay in time and the terms of deposit made for the purpose of settlement as per the Amnesty Scheme under the Act for the assessment year 1998-99 alone is germane.

5. Ext.P3 order did not apportion the payment to be made towards the components of tax, sur-charge or interest whereas Ext.P5 order specifically set apart the payment to be made towards 50% of the balance disputed tax. The remittance of Rs.2,00,00,000/-made by the petitioner pursuant to Ext.P3 order can only be an 'open payment' [See CIT v