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2004 DIGILAW 376 (KAR)

RAJASHREE CEMENT v. STATE OF KARNATAKA

2004-06-19

N.K.PATIL

body2004
N. K. PATIL, J. ( 1 ) THE petitioner has sought for quashing the impugned demand notice dated 27th September, 2003 bearing No. RGN issued by the second respondent vide annexure A, by holding that the same is wholly illegal, arbitrary, unjust, whimsical, passed without jurisdiction, capricious and in violation of Articles 14, 19{l) (g) and Article 265 of the Constitution of India. Further, he has sought to declare that the petitioner is not liable to pay motor vehicle tax in respect of the earth moving vehicles used solely in the mining or factory areas of the petitioner and that the second respondent is not entitled to demand and levy motor vehicle tax in respect of the aforesaid earth moving vehicles. Further, the petitioner has sought for a direction, directing the respondents to refund the amount of Rs. 9. 13. 200/- along with interest. ( 2 ) THE petitioner is a unit of M/s. Grasim india, a Company registered under the provisions of the Companies Act, 1956 and is engaged in the manufacture of cement in its factory situate at Aditya Nagar, Sedam, taluk, Gulbarga District. Limestone is the essential raw material required in the manufacture of cement and for the purpose of obtaining the said limestone, the petitioner has entered into a mining lease with the state Government by paying royalty. Further, the case of the petitioner is that, the petitioner owns certain dumpers, shovels. for klift, pay loaders, cranes and excavators for mining purposes within the factory premises or the mining area. Be that as it may. The second respondent issued the Impugned demand notice, demanding motor vehicles tax in respect of the vehicles namely 04 dumper R. and 02 JCB. The said demand of the motor vehicles tax under the karnataka Motor Vehicles Taxation Act' (hereinafter called the 'act') on the abovesaid vehicles is contrary to law on the ground that, the vehicles in question are not plying on public road. In fact, there is absolutely no evidence to show that heavy vehicles owned by the petitioner are being plied on the public road. In the absence of any such evidence, it is not open to the second respondent to demand payment of tax from the petitioner in respect of the vehicles in question, referred above. These vehicles have been used exclusively within the private premises of the petitioner. In the absence of any such evidence, it is not open to the second respondent to demand payment of tax from the petitioner in respect of the vehicles in question, referred above. These vehicles have been used exclusively within the private premises of the petitioner. Therefore, the second respondent cannot subject the vehicles in question to tax. The impugned demand of tax is illegal, unsustainable, and is liable to be quashed as the same is violative of Article 265 of the Constitution of India in view of illegal demand notice issued by the second respondent, which is contrary to the material on record. Hence, the petitioner was constrained to approach this Court by filing these petitions. ( 3 ) THE principal submission canvassed by the learned counsel appearing for the petitioner is that, the impugned demand notice issued by the second respondent is contrary to law and the same is illegal, unjust and violative of Articles 14 and 19 (1) (g) and Article 265 of the Constitution of India. Further, he submitted that, the vehicles in question are purported to be used within the existing quarry and factory premises of the petitioner and at no point of time, the vehicles in question have been plying on the public road, nor it is the case of the second respondent that, the petitioner has been plying the vehicles in question on public road and the petitioner is liable to pay the motor vehicles tax. Further, he vehemently submitted that, the respondents have not considered the mandatory provision of Section 2 (28) of the Motor Vehicles Act, 1988. The said provision excludes the motor vehicles of the kind owned and used by the petitioner from the operation of the provisions of the act, as regards liability to pay motor vehi- cles tax. To substantiate his submission, he placed reliance on the judgment of this Court in the case of R. Pampapatghi v. Senior Inspqctor of Motor Vehicles, RTO, Hospet reported in ILR (1996) Kant 3480 wherein this court has held that no tax can be levied on (he vehicles in question under the provisions of the Act, if the vehicles in question are not plied on public road. Therefore, he submitted that, the impugned demand notice issued by the second respondent is one without authority of law, and contrary to the mandatory provisions of the Act. Therefore, he submitted that, the impugned demand notice issued by the second respondent is one without authority of law, and contrary to the mandatory provisions of the Act. ( 4 ) PER contra, the learned Government pleader appearing for respondents, inter alia, contended and substantiated the impugned demand notice issued by the second respondent. Further, he submitted that, the petitioner is not entitled to assail the impugned demand notice by presenting the instant writ petitions. If the petitioner had any grievance against the impugned demand notice, the petitioner ought to have filed objections and taken the defence within 15 days from the date of receipt of the demand notice. Hence, he submitted that if, the petitioner even now files his objections to the said demand notice, the same would be considered and appropriate orders will be passed. Therefore, the writ petitions filed by the petitioner is liable to be dismissed. ( 5 ) AFTER hearing the learned counsel appearing for the petitioner, the learned Government pleader appearing for respondents and after considering the rival contentions urged by both the parties, the only question that arises for consideration is as to: whether the impugned demand notice issued by the second respondent is sustainable in law ? the contention of the learned counsel appearing for the petitioner is that, without any order, the impugned demand notice has been issued by the second respondent. He submitted that the impugned notice ought not to have been issued by the second respondent without there being an order determining the liability of tax on the petitioner i am of the view that, the said submission of the learned counsel for the petitioner has considerable force. After careful perusal of the impugned demand notice, there is no reference as such made therein and it is also not the case of the respondents that the petitioner is using these vehicles on public road. If the petitioner is plying these vehicles on public road, it is very much open for the respondents to demand payment of tax by passing appropriate orders. Instead of that, the second respondent has proceeded to issue the impugned demand notice without issuing a notice, which is a condition precedent for issuing the demand notice. Moreover, the impugned demand notice issued is vitiated for non- compliance of principles of natural Justice also. Instead of that, the second respondent has proceeded to issue the impugned demand notice without issuing a notice, which is a condition precedent for issuing the demand notice. Moreover, the impugned demand notice issued is vitiated for non- compliance of principles of natural Justice also. In the instant case, it is not the case of the respondents that the petitioner is plying the vehicles in question in the public road and the petitioner is liable to pay the tax under the Act. Straightway mentioning the provisions and issuing the demand notice is not justifiable in view of the well-settled law laid down by the Apex Court in host of judgments. The respondents have repeatedly issued the demand notice, without following the mandatory provisions of the Act and Rules, as rightly pointed out by the learned counsel for the petitioner. This court has already laid down the well-settled principles of law in the case of R. Pampapatghi v. Senior Inspector of Motor vehicles, RTO, Hospet, {ilr (1996) Kant 3480), wherein it is held that, no tax can be levied on the same under the provisions of the Taxation Act if it is not intended to be used on public roads. Without following the settled law laid down by this Court, the respondents have proceeded to issue the impugned demand notice. However, one more factor to be taken into consideration in this regard is, on an earlier occasion, in the year 2002, the respondents have committed the same error by issuing the demand notice and the petitioner had approached this Court and filed the writ petition No. 5643-48/2001, writ petition No. 1470 and 3658-3683/2002 and the writ petitions filed by the petitioner had been disposed of by this Court by its order dated 29th August, 2002, quashing the notices issued by the respondents therein and had remitted the matter to the respondents to consider the matter afresh. In spite of the said order, the second respondent has not at all followed the directions issued by this Court and the well-settled principles of law laid down by this court, referred above. Therefore, in my considered view, at no stretch the impugned demand notice can be sustained. Hence, the matter requires reconsideration afresh and to be decided in accordance with law. Therefore, in my considered view, at no stretch the impugned demand notice can be sustained. Hence, the matter requires reconsideration afresh and to be decided in accordance with law. ( 6 ) HAVING regard to the facts and circumstances of the case, as stated above, and taking into consideration the totality of the case on hand, I do not find any good grounds to sustain the impugned demand notice issued by the second respondent. Accordingly, the writ petitions filed by the petitioner stands disposed of with the following directions : (I) The impugned demand notice dated 27th September, 2003 In No. RON issued by the second respondent vide Annexure A is directed to be treated as show cause notice; (II) The petitioner herein is permitted to file objections within two weeks from the date of receipt of this order,; (III) The second respondent herein is directed to consider the objections to be filed by the petitioner and pass appropriate order after affording an opportunity to the petitioner, as expeditiously as possible, within an outer limit of three months from the date of receipt of objections from the petitioner. (IV) If in case,' the petitioner, in pursuance of the impugned demand notice, has deposited any tax amount towards the amount mentioned in the demand notice, the same will be subject to the result of the decision to be taken by the second respondent. ( 7 ) FOR the foregoing reasons, the writ petitions filed by the petitioner succeed and stand disposed of. Orders accordingly. --- **