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2019 Supreme(J&K) 107
IN THE IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
RAJESH BINDAL, TASHI RABSTAN, JJ.
M/s Basantar Bottles - Appellant
Versus
State of J&K and Ors. - Respondents
OWP No.1183 of 2010 (O&M) and connected cases
Decided on : 09-04-2019
Advocate Appeared:
For the Appellant :Mr. R.S. Thakur, Sr. Advocate with Mr. Ashwani Thakur, and Mr. Jagpaul Singh, Advocate
For the Respondent: Mr. Amit Gupta, Sr. AAG and Mr. K.D.S. Kotwal, Dy. AG
Headnote:
Toll Act - Section 8 - Jammu and Kashmir Levy of Toll Rules - Rule 58 - Payment of Excise Duty – Claim toll tax exemption - Petitioner Bottlers herein is a sole proprietorship concern - He is engaged in business of blending and bottling of Indian Made Foreign Liquor and JK Whisky - He is having his Unit at Industrial Growth Centre SIDCO Samba under license - It is claimed that during period from February to October petitioner exported Indian Made Foreign Liquor for short IMFL hereinafter to other States against export permits issued by Excise Department – Held, Reference to raising demand for excise duty perusal of notice shows that reference has been made to certain enquiry conducted regarding genuineness of Import and Export permit son basis of which petitioner claimed exemption from payment of excise duty Jammu and Kashmir Excise - There is no dispute about fact that material which was produced before Enquiry officer and report of enquiry on basis of which show cause notices were issued to petitioners were not served on petitioners - They were not associated during process enquiry 0 Petitioners had filed detailed reply to aforesaid show cause notices specifically stating that they were not aware of any complaint filed as neither copy of complaint nor copy of enquiry report was supplied to petitioners - They were not at all party to fraud if any committed - After receipt of aforesaid reply filed by petitioners vide impugned demand notices while mentioning certain facts giving rise to situation where certain enquiry was required to be conducted issuance of show cause notices to petitioners and factum of reply from them huge demand was raised against petitioners - Regarding contents of reply only what was mentioned in impugned demand notices was that reply was considered and found lacking merit - None of issues raised by petitioners in their replies were dealt with – Hence orders were totally non speaking besides being in violation of principles of natural justice – Petitions allowed
Rajesh Bindal, J.
This Order will dispose of a bunch of petitions bearing OWP nos. 1183/2010, 1185/2010, 1186/2010, 1384/2010, 1423/2010, 1442/2010 and 1443/2010. All the cases have been taken up together as the legal issues involved are common.
Facts of the Cases
OWP No.1183/2010
2. As pleaded, the petitioner (M/s Basantar Bottlers) herein is a sole proprietorship concern. He is engaged in business of blending and bottling of Indian Made Foreign Liquor and JK Desi Whisky. He is having his Unit at Industrial Growth Centre, SIDCO, Samba under license No. 06/JKEL-6. It is claimed that during the period from February 26 to October 10, 2009 the petitioner exported Indian Made Foreign Liquor (for short ‘IMFL’ hereinafter) to other States against export permits issued by the Excise Department. The permits were got issued for export of IMFL to the importers in the State of Goa. The export of IMFL from the State of Jammu and Kashmir to any other State against due permission was exempted from payment of Excise Duty. The petitioner availed that exemption. Later on, the department found that the export was on the basis of some fake documents. Accordingly, demand notice dated 25.09.2010 was issued against the petitioner, directing the petitioner to remit an amount of Rs. 4,51,65,600/- as Excise Duty within a period of 15 days from the date of service of the notice failing which same was to be recovered as arrears of land revenue. Against the demand raised, the petitioner has filed the present writ petition.
OWP No.1384/2010
3. Subsequently, the respondents issued notice dated 07.10.2010, directing the petitioner-M/s Basantar Bottlers to remit an amount of Rs.2,70,000/- as toll tax and fine of Rs. 27,00,000/- on account of misuse of Toll Tax exemption on fake documents. The petitioner was further directed to explain his as to why he should not be debarred from claiming toll tax exemption for a period of one year in terms of Rule 58 of the Jammu and Kashmir Levy of Toll Rules, 1995 (hereinafter referred to as ‘the Rules’). The aforesaid notice was followed by final notice dated 08.11.2010, whereby the petitioner was directed to deposit the aforesaid amount and was further directed to explain his position within 15 days as to why he should not be debarred from claiming the toll tax exemption for a period of one year. Both the aforesaid notices have been challenged by the petitioner by filing the present writ petition.
OWP No.1423/2010
4. After demand of Excise Duty and toll tax with fine was raised against the petitioner vide Notice dated 07.10.2010, which is subject matter of OWP Nos. 1183/2010 and 1383/2010, the respondents issued notice dated 27.11.2010, debarring the petitioner from claiming toll tax exemption for a period of one year from 21.09.2010 and further demand of Rs. 29,556/- was raised as toll tax from 21.09.2010 till the date of notice. The petitioner has challenged the aforesaid notice dated 27.11.2010 in the present writ petition.
OWP No.1186/2010
5. As pleaded, the petitioner (M/s New India Breweries) herein is a sole proprietorship concern. He is engaged in business of blending and bottling of Indian Made Foreign Liquor and JK Desi Whisky. He is having his Unit at Sujwan, Samba under license No. 10/B-1. It is claimed that during the years 2008-09 and 2009-10, the petitioner exported Indian Made Foreign Liquor (for short ‘IMFL’ hereinafter) to other States against export permits issued by the Excise Department. The permits were got issued for export of IMFL to the importers in the State of Goa. Export of IMFL from the State of Jammu and Kashmir to any other State against due permission was exempted from payment of excise duty. The petitioner availed that exemption. Later on, the department found that the export was on the basis of some fake documents. Accordingly, demand notice dated 25.09.2010 was issued against the petitioner, directing the petitioner to remit an amount of Rs. 67,03,200/- as Excise Duty within a period of
