JUDGMENT : Petitioner’s claim for refund of input tax under section 13 of the Kerala Value Added Tax Act, 2003 (for short the Act) for the period from October, 2010 to March, 2015 was declined. The assessing officer rejected the claim alleging that input tax credit cannot be allowed for the purchase of goods used in the manufacture of goods specified in the First Schedule to the Act as provided in section 11(5)(e) of the Act. The orders of rejection of refund are impugned in this writ petition. 2. Petitioner is a Government of India undertaking engaged in the business of manufacturing and sale of condoms, intrauterine devices, surgical gloves and other healthcare products. It was registered under the erstwhile Act. Petitioner alleges that condoms manufactured by the petitioner are exported to various countries as well as sold indigenously. 3. Petitioner claimed refund of the tax paid for the period from 2005 to 2010 in respect of rubber latex and other materials purchased from registered dealers which were used in the manufacture of condoms that were exported, as per section 13 of the Act. Due to delay in completing the assessments for the year 2010-11, the said refund applications were not considered. Finally, by order dated 04-07-2015, the entire refund due to the petitioner till 2010 was paid. The refund claims for the period uptill September 2010 were also ordered to be refunded to the petitioner, though after much delay. 4. In the meantime, petitioner had claimed refund for the period October, 2010 till September, 2015. However, the third respondent issued notices dated 17-09-2016 intimating the petitioner its proposal to reject the claim for refund for the period October 2010 till September 2015. It was mentioned in the notices that section 11(5)(e) of the Act stipulated that no input tax credit shall be allowed for the purchase of goods that are used in the manufacture, processing and packing of goods specified in the First Schedule of the Act and that as condoms and contraceptives fall under Entry 30 of the First Schedule, they being exempted from tax, the input tax credit availed on the purchase of rubber latex used for the manufacture of the same is to be disallowed and therefore the claim for refund is irregular. 5. 5. In response to the notice proposing to reject the refund applications, petitioner pointed out that the claims were for refund of input tax credit of purchase of goods under section 13 of the Act and not claims for input tax credit under section 11 of the Act. Petitioner also pointed out that the refund claimed is the tax paid by them to a registered dealer for the purchase of rubber latex in the course of business and that the only ineligibility for refund as per section 13 was with respect to goods specified in the Fourth Schedule to the Act. 6. Disregarding the objections raised by the petitioner, the Assessing Officer rejected the claims for refund for the period October 2010 to September 2015, by separate orders, all dated 17-10-2016. Though rectification applications were filed by the petitioner, they were all rejected. Petitioner has thus approached this Court challenging the orders rejecting the claims for refund as well as the orders refusing to rectify the error apparent on the face of the record. Petitioner also claims for a declaration that it is entitled to get refund for the period from October, 2010 to September, 2015 and also for a re-consideration of the claim for refund. 7. A counter affidavit has been filed on behalf of the third respondent stating that the claims for refund was verified by the third respondent and the petitioner was found not eligible for the refund in view of section 11(5)(e) of the Act, which stipulated that no input tax credit shall be allowed for the purchase of goods used in the manufacture, processing and packing of goods in the First Schedule of the Act. It was further pointed out that, since the item condom falls under Entry 13 of the First Schedule, the input tax availed on the purchase of rubber latex, which is used for the manufacture of the same, is irregular. The third respondent also averred that the claim for refund was rejected after examining the objections which were found to be devoid of any merit. The counter-affidavit also mentioned that petitioner had made local sales, inter-state sales and stock transfers apart from export sales and that the accounts did not show separately, the turnover of raw material used for the manufacture of goods sold by way of inter-state sale, inter-state sale, stock transfer, export sales etc. The counter-affidavit also mentioned that petitioner had made local sales, inter-state sales and stock transfers apart from export sales and that the accounts did not show separately, the turnover of raw material used for the manufacture of goods sold by way of inter-state sale, inter-state sale, stock transfer, export sales etc. Respondent also stated that the remedy of the petitioner, if aggrieved by the orders of the assessing officer, was to prefer an appeal under section 55 of the Act and if again aggrieved, to prefer a second appeal before the Appellate Tribunal. The circumstances to prefer a writ petition under Article 226 was pleaded as not available and on that basis, the respondent sought for dismissal of the writ petition. 8. I heard the arguments of Sri V.Krishna Menon, learned counsel for the petitioner as well as Smt. M.M Jasmin, learned Government Pleader. 9. The third respondent, in its counter affidavit, has raised the question of maintainability of the writ petition. Indubitably alternative statutory remedies were available to the petitioner. However, this writ petition has been preferred contending that the impugned orders are passed in violation of Article 14 of the Constitution of India and the respondents had failed to consider the objections raised against the proposal for rejection of the claim for refund. This writ petition was filed in 2017 and has been pending consideration for the last five years. After entertaining this writ petition and permitting it to remain on the files of this Court for the last five years, it may not be conducive to the principle of fairness to reject this writ petition on the ground of alternative remedy. The rule of exclusion of writ jurisdiction due to alternative remedy it has been held is a rule of discretion and not one of compulsion. (See the decision in Harbanslal v. Sahnia and Another v. Indian Oil Corpn. Ltd. and Others [ (2003) 2 SCC 107 ]). 10. Apart from the above, it is trite law that when the impugned orders are issued in violation of the principles of natural justice, the jurisdiction under Article 226 of the Constitution of India can be invoked. Petitioner alleges that the Assessing Officer had failed to consider the objections raised by the petitioner to the proposal for rejection of refund. 10. Apart from the above, it is trite law that when the impugned orders are issued in violation of the principles of natural justice, the jurisdiction under Article 226 of the Constitution of India can be invoked. Petitioner alleges that the Assessing Officer had failed to consider the objections raised by the petitioner to the proposal for rejection of refund. On a perusal of the impugned order Ext.P15 series, I notice that there is no consideration of the objections raised by the petitioner to the proposal for rejection of refund. The said issue is dealt with in detail, in the subsequent paragraphs. The impugned order is therefore issued in violation of the principles of natural justice and is hence arbitrary. Thus the objection raised by the third respondent regarding the maintainability of this writ petition is rejected. 11. Petitioner’s applications for refund of input tax paid for goods sold in the course of export have been rejected on the ground that under section 11(5)(e) of the Act, input tax credit cannot be allowed for goods which are used in the manufacture processing or packing of goods specified in the First Schedule. The Assessing Officer has held that since the goods for which refund is claimed by the petitioner are those that fall under the First Schedule, petitioner is not entitled to the refunds claimed. 12. Section 11 of the Act deals with input tax credit and stipulates that any registered dealer liable to tax under section 6(1) shall be eligible for the input tax credit, subject to the other provisions of the said section. Section 6(5)(e), which obviously is a provision of the said section, provides that no input tax credit shall be allowed for the purchase of goods which are used in the manufacture, processing or packing of goods specified in the First Schedule and Fourth Schedule. 13. In contrast to section 11, section 13 of the Act deals with refund of input tax in the case of export or inter-State sale. For the purpose of understanding the scope of section 13, it is necessary to extract the same which is as below: “S.13. Refund of input tax in the case of export or inter-State sale,-(1) Every sale in the course of export shall be a zero rate sale. For the purpose of understanding the scope of section 13, it is necessary to extract the same which is as below: “S.13. Refund of input tax in the case of export or inter-State sale,-(1) Every sale in the course of export shall be a zero rate sale. (2) Where input tax has been paid in respect of the purchase of any goods including capital goods, except those goods coming under the Fourth Schedule, and such goods are either,- (i) sold in the course of export; or (ii) sold in the course of inter-Sate trade or commerce; or (iii) sent to outside the State otherwise than by way of sale in the course of inter-State trade; or (iv)(a) used or consumed in the manufacture of goods, other than those falling under the Fourth Schedule, or used as containers or as packing materials for such goods and such manufactured goods are sold in the course of export; or (b) used or consumed in the manufacture of taxable goods or used as containers or as packing materials of such goods manufactured and such manufactured goods are sent outside the State either by way of sale in the course of inter-state trade or commerce or otherwise; or (v) used as Capital goods; the input tax paid on such goods shall be refunded to the person making such sales in the course of export or in the course of inter-State trade or commerce or sending such goods to outside the State, as the case may be, in such manner and subject to such conditions as may be prescribed: Provided that the dealer claiming such refund shall not claim input tax credit on such purchases for any return period: Provided further that where the goods are sent to outside the State otherwise than by way of sale in the course of inter-State trade or export or where the sale in the course of inter-State trade is exempted from tax, the refund under this section shall be limited to the amount of input tax paid in excess of five per cent on the purchase turnover of such goods sent outside the State, re-sold or used in the manufacture, as the case may be: Provided also that in the case of capital goods, the refund of input tax will be allowed in such instalments as may be prescribed. Explanation.-For the removal of doubt it is hereby clarified that where input tax is paid on the purchase of Duty Entitlement Pass Book or any similar license for the import of any goods and goods so imported are used, consumed or disposed of in the manner specified in this sub-section, the input tax paid on the purchase of such Duty Entitlement Pass Book or any similar license shall for the purpose of this section and section 11, be deemed to be the input tax paid on the goods imported. (3) Nothing contained in sub-section (2) shall be construed as preventing the assessing authority from adjusting any amount due as refund under sub-section (1) towards any tax or other amount due from the dealer, under this Act or under the provisions of the Kerala General Sales Tax Act, 1063 (15 of 1963) or the Central Sales Tax Act, 1956 (Central Act, 74 of 1956) or The Kerala Tax on Entry of Goods into Local Areas Act, 1994 (15 of 1994). (4) The provisions of this section shall apply to goods purchased by a dealer during a period of one year immediately preceding the date of commencement of the Act and held by such dealers as opening stock on such date. Explanation.- For the purpose of this section,- (a) a 'sale in the course of export' means a sale falling under subsection (1) or sub-section (3) of section 5 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956). (b) “input tax” includes tax paid under sub-section (2) of section 6, input tax covered by the Explanation to sub-section (13) of section 11 and the tax paid under the Tax on Entry of Goods into Local Areas Act, 1994 (15 of 1994) on any taxable goods.” 14. Sub-clause (2) of section 13 of the Act stipulates that if input tax has been paid for purchase of any goods, except for those goods specified under the Fourth Schedule, and if such goods are sold in the course of export, the input tax paid on such goods shall be refunded to the person making such sales. The refund cannot be claimed if the dealer has claimed input tax credit on such purchases for any return period. The refund cannot be claimed if the dealer has claimed input tax credit on such purchases for any return period. When the refund is claimed in respect of input tax paid in the purchase of any goods that are sold in the course of export, the provision that is applicable is section 13 and not section 11 of the Act. The only exclusion in section 13 is with respect to goods falling under the Fourth Schedule. 15. The Assessing Officer, while rejecting the claim for refund, failed to appreciate the distinction between section 11 and section 13 of the Act. Section 11 deals with eligibility for input tax credit while section 13 deals with refunds. Under section 11 of the Act, all registered dealers are eligible for input tax credit except those excluded under section 11(5) of the Act. Goods used in the manufacture, processing or packing of goods specified in the First Schedule and Fourth Schedule are not eligible to claim input tax credit as per section 11(5)(e) of the Act. However, when it came to refund of input tax under section 13, the Legislature confined the exclusion only to those goods coming under the Fourth Schedule. Ineligibility to claim input tax credit under section 11(5)(e) is not a bar to claim refund of input tax under section 13 of the Act. Further, ineligibility to claim input tax credit and section 11(5)(e), in effect satisfies the condition in the first proviso to section 13 of the Act. 16. On a perusal of the impugned order rejecting the claims for refund, the Assessing Officer also failed to consider the objections raised by the dealer. On the other hand, the refund claimed was rejected by merely accepting the proposal, without even considering the objections raised by the dealer. In fact, the dealer had specifically mentioned that section 11(5) dealt with cases where set off of input tax credit is not allowable with output tax payable and that they had not claimed input tax credit under section 11 for the tax paid on the rubber latex used for the production of condoms and contraceptives, but it only made the claim for refund under section 13 of the Act. The tax paid qualifies as input tax for the purpose of refund under section 13 of the Act and as long as the goods are not those falling under the Fourth Schedule, if the conditions stipulated in section 13 of the Act are satisfied, the application for refund is liable to be allowed. 17. The Assessing Officer has rejected the claim for refund for reasons that are alien to the Statute. The distinction between goods under the First Schedule and those under the Fourth Schedule have been specifically taken note of by the Legislature while enacting section 13 of the Act. Exclusion from refund of input tax in the case of export is available only in respect of goods coming under the Fourth Schedule, though, for the goods under the First Schedule are not eligible to claim input tax credit. However that is not a reason to reject the claim for refund under section 13 of the Act. In such circumstances, this Court is of the opinion that if input tax has been paid in respect of the purchase of any goods that fall under the First Schedule and if such goods are sold in the course of export and the input tax paid on such goods are liable to be refunded, notwithstanding the goods are those that fall under the First Schedule, refund is to be granted. 18. With the aforesaid principle of law in mind, when the impugned orders are appreciated, it is noticed that the assessing authority failed to apply its mind to the specific objections raised by the petitioner and on the other hand merely reiterated the proposal without even bearing in mind the principles as well as the objections raised by the petitioner. In such circumstances, I find that the impugned orders (Ext.P15 series) are issued in violation of the principles of natural justice and are not even speaking orders. In view of the above, I set aside Ext.P15 and Ext.P15(a) to Ext.P15(e) orders dated 17-10-2016 issued by the third respondent as well as Ext.P17 and Ext.P17(a) to Ext.P17(e) communications dated 15-11-2016 rejecting the applications for rectification. In view of the above, I set aside Ext.P15 and Ext.P15(a) to Ext.P15(e) orders dated 17-10-2016 issued by the third respondent as well as Ext.P17 and Ext.P17(a) to Ext.P17(e) communications dated 15-11-2016 rejecting the applications for rectification. I further direct the third respondent to re-consider the application for refund submitted by the petitioner for the period October, 2010 to September, 2015, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of the judgment, in the light of the observations made in this judgment. This writ petition is allowed as above.