M/S. Heera Retail (Hyderabad) Private Limited, v. Commissioner Of Central Tax,

[ 3379 ] H]GH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI WR]T PETITION NO: 34131 0F 2023 Between:

1. M/s. Heera Retail (Hyderabad) private Limited, (Represented bv its Director) H. No. 12-6-212681'112,3,4, F, Vivek Nagar, Kukat'patty, HyOeraOaO _1OOOI, " 2 9.qt, tlgytl"g-9!g!f, Director M/s. Heera Retait (Hyderabad) private Limited, H. No. 12-6-212681112,3,4, F, Vivek Nagar, Kukatiatiy, Hyderibad -SOOOii --' ...PETITIONERS ANO Commissioner of Central Tax, Medchal Coimnissionerate, Medchal GST Bhawan, Hyderabad 500004.

Addational Director General, Directorate of GST lntelligence, 1-6312t212, plol No 21 1 and 212, Block B, Kavuri Hills, Guttala "Begumpet fvfiOn'apui, Hyderabad.

Serious Fraud lnvestigation Office, Regional Office: Hyderabad, 4th Floor. Corporate Bhawan, Bandlaguda, Hyderabad- 50006g Telangana State Forensic Science Laboratory, Niloufer Hospital Rd, Red Hills, Hyderabad- 500004 Assistant Commissioner of Policle, (WCO) A Division, Detective Department, Central Crime Station, Beside L.B. Stadium Hyderabad- 500004 Unron of lndia, (Represented by Secretary (Revenue)), North Btock, New Delhi ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumslances stated in the affidavit filed therewith, the High Court may be pleased to rssue an appropriate writ, order or direction in nature of writ of mandamus.

(a) Declaring the impugned Order in Original No. HYD-EXCUS-oo1-COM-00523-24 dt.06.07.2023 as being arbitrary, without jurisdiction, in violation of principles of natural justice, without authority of law and violative of Articles 14, t9(1Xg) and 265 of Constitution of lndia and contrary to the provisions of Central Excise Act, 1944 and, Rules made thereunder;

(b) Declare the acts and omissions of 3rd, 4th and 5th Respondent in not giving i I the documenls as violative of principles of natural justice and direct the 3rd, 4th and 5th Respondents to furnish the entire documents, data and extract of software data from tally accounting system and ERP software seized from i tt I !

, petitioner company to facilitate proper adludication and; I (c) Direct the 1st Respondent to adjudicate the Show Cause Notice No.O2l2O2122 dt.08.04.2021 only upon receipt of entire data from the 3rd, 4th and 5th ', Respondents and granting sufficaent opportunity to the petitioners. lA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the impugned Order in Original No. HYD-EXCUS-001-COM-OO5-23-24 d1.06.O7.2023 issued by the l st respondent and stay the recovery of the disputed demand, interest and penalties under the impugned order. Counsel for the Petitioner: M/s. Y.SlRl REDDY Counsel for the Respondent No.1 & 2: M/s. DOMINIC FERNANDES, SC FOR GST Counsel for the Respondent No.3 & 6: SRI GADI PRAVEEN KUMAR, DEPUTY SOLICITOR GENERIAL OF INDIA Counsel for the Respondent No.4: - Counsel for the Respondent No.5: GP FOR HOME The Court made the following: ORDER

THE HON'BLE SRI JUSTICE P.SAM KOSITY AND THE HON'BLE SRI WSTICE N. TUI(ARAIVIJI WRIT PEf,ITION No.34131 0F 2023 ORI)ER:(per Hon'ble Si Justice P.SAM KOSHY) !

When the matter is taken up for hearing today, it has been informed by the learned counsel for the Department that an identical Writ Petition i.e., W.P.No.33957 of 2023 has already been rejected of uide order dated 16.12.2023'

2. In view of the fact that the identical matter has already been rejected by this Court, we are inclined to reject this Writ Petition also, in terms of the order passed in W'P'No'33957 of 2023 decided on 16.12.2023 on similar terms'

3. As a sequel, miscellaneous applications pending if any in these u-rit petitions, shall stand closed. No order as to costs' SD/.A. PRATHIMA .,'/ ASSISTANT GIS R //TRUE COPY// SECTION OFFICER To,

1. One CC to [vl/s. Y.SlRl REDDY, Advocate [OPUC] Z One CC to IV/s. DOMINIC FERNANDES, SC FOR GSI IOPUQI 5- O; CC io SNI GADI PRAVEEN KUMAR, DEPUTY SOLICITOR GENERIAL - OF lf.f Of e, High Court for the State of Telangana^at Hyrtf'r'abad IOPUCI 4 Two CCs to dP FOR HOME, High Court for the State of Telangana at Hyderabad [OUT]

5. Two CD Copies [Along with thL copy of order dated 16.12.2023, in W.P.No'33957of 2023) BSR GJP \ V

HIGH COURT DATED: 1911212023

ORDER

WP.No.34131 of 2023 lHE sf4 ( 31 JAff 20a \ L) I J) o.

* * .-^ rcr) 9^"n REJECTING THE WRIT PETITION, WITHOUT COSTS x(^ v\'

THE HON'BLESRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE N.TUKARAMJI W.P. No.33957 of2023 ORDER:fpe' llon'ble Sri Jusrice P.SAM KOSHY) Heard Mr.Yammanuru Siri Reddy, learned counsel for the petitioner, Ms.B.Sapna Reddy, leamed Junior Standing Counsel appearing for Mr.Dominic Fernandis, Ieamed Senior Standing Counsel for CBIC for respondent No.l and 2 and Mr.B.Mukharjee, learned counsel appearing fbr Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India. ftrr respondent No.3 2.

This Writ Petition is fited challenging the order in original passed by respondent No.l. dated 13.07.2023. The authority concerned with the said impugncd ordet has passed an order conlrming the demand of an amount ot Rs.10.50.9(r.633/- the central excise duty payable by thc petitioner on the gross sale consideration received during the period March-2016 to Jirne-2017. In addition, the respondent No'l has also imposed a penalty of an amount of Rs.10,50,96,6331- for committing contraventions under the statute with an intent to evade the central excise duty. In acldition. thcre was f urther penalty of Rs.l crore imposed upotr

one of the Directors of petitioners company for transporting, removing, depositing, skipping, selling without payment of duty. 3.

Learned counsel for the petitioner submits that rhe challenge to the ' said impugned order is on the ground that the entire order has been passed without any effective defence being provided to the petitioners. According to the petitioners all the documents which were available for the defence of the petitioner are one which were already seized by the department, as such the petitioner does not have any documents to confront or produce before the authoritics concerned. He further submits that inspite of repeated requcst, these documents were not been made available to the petitioner which prevenred him for effective defence 4.

lrarned counsel for the petitioner further referred that the entire bank account also seems to havc bcen seizcd by thc authorities concerned and in the process, the petitioncr u,ould not bc in a position to make pre-deposit of amount which is otherw ise nrandatorily required for preferring of an appeal 5.

At the outset, we are ol' rhc consichled opinion that the instant order is one which has becn passcd alrnost about six (6) rnonths back i.e., on 13.07 .2023 under the starutory provision. thc sratutory appeal have to be filed within the period ol thrcc (l) monrhs. Thc instan( petition has

been filed much afrer the period of limitation for filing the appeal under Section 35 (bxi) is lapsed. Though the writ petition was earlier filed on lO.lO.2O23, but due to certain defaults, the same was returned and thereafter it has now been filed.

6.Havingheardthepetitioner,whatisalsoreflectedfromtheperusal of the pleadings is that in order to properly appreciate the contentions which the petitioner has raised in the present writ petition, so far as the petitioner having not manufactured any Jewellery and as such the sale made by them if at all cannot be considered to be first sale. Infact the jewelleries which wcre there with thc petitioner's establishment are all purchased by the petitioners from third palty. For this reason also it could be clearly established rhar ir was not their first sale which they had made and the persons from whom they purchased may be the persons who have made first sale and who have paid thc entire duty payable under Central Excise Act, 1994.

7.

Further, it was also thc contcntion of the learned counsel for the petitioner that the pcririonef in acldition have also been selling coins both the Gold ar.rd Silver which asain are the products which are not manufactured by the petitioners. All these are the facts which can be ascertained only on going through tlre records and the factual aspects of

the case available before the authorities concerned. The factual aspects cannot be thrashed out exercising the Writ Jurisdiction of this Court invoking Article 226 of the Constitution of India which is otherwise an extraordinary jurisdiction. The petitioners herein have a statutory alternative remedy of appeal, under statute itself. 8.

At this juncture, it would be relevant to take note of the contents of paragraph No.7 of the impugned order which refers to the statement of one of the Directors of the petitioner's establishment herself, where she has accepted that the petitioner's establishment is engaged in the manufacturing of articles of Gold and further thar thc petitioners establishment was neither registered with the Central Excise Department nor paying any Central Excise duty upon removal of the excisable goods manufactured by them.

9.

In the teeth of the aforesaid findin,e in the impu_srned order it would not be proper for this Court in exercising its urit jurisdiction at this juncture to test the veracity of the order as ir rr,.uld rcquire th'ead bear appreciation of the facts and their afrirms a'ailablc * ith lhc dcpar.tment and also that which is available with the peririoners.

10. For the aforesaid reasons, we are not incrined to e,tertai. the writ Petition. Thus, this writ Petition fails ancr is accorcri,gly rejected.

*r Nonetheless, the right of the petitioner to pr€fer an appeal in accordance with the provisions of the Act, is left open. ( 11.

As a sequel, miscellaneous applications pending if any in this writ petition, shall stand closed. No order as to costs' P.SAM KOSITY, J N.TUKARAMJI,J t6.12.2023.

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