M/S. Heera Gold Exim Limited v. Commissioner Of Central Tax

[ 337s ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) !

i i SATURDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE N.TUKARAMJI wRlT PETTTTON NO.33957 0F 2023 Between:

1. M/s. Heera Gold Exim Limited, (Represented by its Direclor), H. No. 12-6212681112,3, 4, F, Vivek Nagar, Kukatpally, Hyderabad - 500072

2. Smt. Nowhera Shaik, Age. 50 years, Director, M/S. Heera Gold Exim Limited, H.No. 12-6-212681112,3,4, F, Vivek Nagar, Kukatpally, Hyderabad -500072 ...PETITIONERS AND Commissioner of Central Tax, Medchal Commissionerate, Medchal GST Bhavan, Hyderabad 500004.

Additional Director General, Directorate of GST lntelligence, 1-63121212, Plot No 211 and 2'12, Block B, Kavuri Hills, Guttala Begumpet Madhapur, Hyderabad.

Serious Fraud lnvestigation Office, Regional Office. Hyderabad, 4th Floor, Corporate Bhawan, Bandlaguda, Hyderabad - 500068

4. Telangana State Forensic Science Laboratory, Niloufer Hospital Rd, Red Hills, Hyderabad - 500004

5. Assistant Commissioner of Police, (WCO) A - Division, Detective Department, Central Crime Station, Beside L B. Stadium Hyderabad- 500004

6. Union of lndia, (Represented by Secretary (Revenue)), North Block, New Delhi ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ. order or direction in nature of writ of ma ndamus.

(a) Declaring the impugned Order in Original No. HYD-EXCUS-001- COM-00623-24 d1.13.07.2023 as being arbitrary, without jurisdictiorr, in violation of principles of natural justice, without authority of law and vic,lative of Articles 14, 19(1Xg) and 265 of Constitution of lndia and contrary 1o the provisions of Central Excise Act, 1944 and, Rules made there under, (b) Declare the acts and omissions of 3rd, 4th and 5th Respondent in not giving the documents as violative of principles of natural justice and direct the 3rd, 4th and sth Respondents to furnish the entire documents, data and extract of software data from tally accounting system and ERP software seized from petitioner company to facilitate proper adjudication an(|, (c) Direct the 'lst Respondent to adjudicate the Show Ca use Notice No 0112021-22 dt.08.04.

2021 only upon receipt of entire data from the 3rd, 4th and 5th Respondents and granting sufficient opportunity to the petitioners. lA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circum itances stated in the affidavit filed in support of the petition, the High Court may br-' pleased to stay the impugned Order in Original No.HYD-EXCUS-001-COM-006-23-24 d1.13.07.2023 issued by the 1St Respondent and.stay the recovery of the disputed demand. interest and penalties under the impugned order. Counsel for the Petitioner: SRI YAMMANURU SlRl REDDY Counsel for the Respondent Nos. 1 & 2: Mr. DOMINIC FERNAN DES, SENIOR STANDING COUNSEL FOR CBIC FOR Ms. B. SAPNA REDDY, JUNIOR STANDING COUNSEL Counsel for the Respondent No.3 & 6: SRI GADI PRAVEEN KUTVIAR, DEPUTY SOLICITOR GENERAL OF lt\lDlA FoR Mr. B.

MUKHARJEE, STANDING COUNSEL FOR CENTRAL (;OVERNMENT Counsel for the Respondent No.S: GP FOR HOME Counsel for the Respondent No.

THE TION'BLB SRI JUSTICE P.SAM KOSHY AND THE TION'BLE SRI JUSTICE N.TUKARAMJI W.P. No. 33957 of 2023 ORDER:(per.I/or'ble Sri Justice P.SAM KOSHY) Heard Mr.Yarlmanuru Siri Reddy, learned counsel for the petitioner, Ms.B.Sapna Reddy, leamed Junior Standing Counsel appearing for Mr.Dominic Femandis, learned Senior Standing Counsel for CBIC for respondent No.l and 2 and Mr.B.Mukharjee, leamed counsel appearing for Mr.Gadi Praveen Kumar, learned Deputy Solicitor General oflndia, for respondent No.3 2.

This Writ Petition is llled chatlenging the orcler in original passed by respondent No.1, dated 13.07.2023. The authority' concemed with the said impugned order has passed an order confln-ning the demand of an amount of Rs.10,50,96,6331- the central excise duty payable by the petitioner on the gross sale consideration received during the period March-20 I 6 to June-201 7. In addition, the respondent No. I has also imposed a penalty of an amount of Rs. 10,50,9(r,63 i/- fbr comn.ritting contraventions under the statute with an intent to evade thc central excise duty. In addition, there was further penaltl, of' Rs.l crore iurposed upon

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

Leamed counsel for the petitioner submits that the challenge to the said impugned order is on the ground that the entire older has been passed without any effective defence being provided to the petitioners. According to the petitioners all the documents which wert: 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 authorities concemed. He lurther submits that inspite of repeated request, these documents were not been made available to the petitioner which prevented him for effective delence 4.

Learned counsel for the petitioner further referred that the entire bank account also seems to have been seized by the autholities concemed and in the process, the petitioner would not be in a pc,sition to make pre-deposit of amount which is otherwise mandatorily required for prelerring of an appeal.

5.

At the outset, we are of the considered opinion that thc instant order is one which has been passed almost about six (6) nonths back i.e., on 13.07.1021 under the statutory provision, the stalutor./ appeal have to be tllcd u ithin tlrc period of three (3) months. The ins.anr peririon llas

been filed much after the period of limitation for fiting the appeal under Section 35 (bxi) is lapsed. Though the writ petition was earlier filed on 10.10.2023, but due to certain defaults, the same was retumed and thereafter it has now been filed.

6.

Having heard the petitioner, what is also reflected from the perusal 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. lnfact the jewelleries which were there with the petitioner's establishment are all purchased by the petitioners from third party. For this reason also it could be clearly established that it was not their first sale which they had made and the persons from whom they purchased may be the persons who have n.rade first sale and who have paid the entire duty payable under Central Excise Act, 1994 7.

Further, it was also the contention ol the leamed counsel lbr the pelitioner that the petitioner in addition have also been selling coins both thc Gold and Silver which again are the products which are not rnanuf'actured by the petitioners. All these are the t'acts rvhich can be ascerlained only on going through the records and thc lactual aspects of

the case available before the authorities concemed. The lactual 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 altemati.ve 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 ttre statement of one of the Directors of the petitioner's establishment herr;elf, where she has accepted that the petitioner's establishment is engaged in the manulacturing ol articles of Gold and further that the petitioners establishmcnt ivas neither registered with the Central Excise Department nor paying any Central Excise duty upon removal of the r:xcisable goods manulactured by them 9.

ln the tecth ol-the aforesaid finding in the impugnerl order it would not be proper tbr this Court in exercising its writ jurisdiction at this juncture to test the veracity ol the order as it would require thread bear appreciation ol'the lacts and their afftrms available with the department and also that which is available with the petitioners.

10. Ijor the afbre said reasons. we are not inclined to entertain the Writ Petition. 'l-hus, this Writ Petition fails and is accordingly rejected

Nonetheless, the right of the petitioner to prefer an appeal in accordance with the provisions of the Act, is left open. I l.

As a sequel, miscellaneous applications pending if any in this writ petition, shall stand closed. No order as to costs. SD/-T. JAYASREE ASSTSTAN\RElllsrRAR //TRUE COPY// SECTI}N oFFIcER To, 1, One CC to SRI YAMMANURU SlRl REDDY, Advocate IOPUC]

2. One CC to Ms. B. SAPNA REDDY, Junior Standing Counsel for Central Tax loPUCl

3. One CC to Mr. B. MUKHARJEE, Standing Counsel for Central Government loPUCl 4 Two CCs to GP for Home, High Court for the State of Telangana at Hyderabad [OUTI

5. Two CD Coptes N4P BS \\io

HII3H COURT DATED 16t1212023 n 1H'i- ST4 16:

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(( tro 0 5 FEB 2024 o (.'

-L .+ rC + WP.No.33957 of 2023 REJECTING THE WRIIT PETITION WITHOUT COSTS \\ t