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2009 DIGILAW 489 (AP)

ALUMECO INDIA EXTRUSION LIMITED AND ANOTHER v. COMMERCIAL TAX OFFICER, BEGUMPET CIRCLE, PAVANI AND OTHERS.

2009-07-22

ANIL R.DAVE, RAMESH RANGANATHAN

body2009
ORDER Ramesh Ranganathan, J. While Writ Petition No. 52 of 2009 arises under the Andhra Pradesh Value Added Tax Act, 2005 (for short, "the APVAT Act"), Writ Petition Nos. 53 and 54 arise under the Andhra Pradesh General Sales Tax Act, 1957 (for short, "the APGST Act"). The first writ petition relates to the validity of an assessment order and the second and the third writ petitions relate to the validity of reassessment orders. Pursuant to a search conducted on the petitioner - company, the Central Excise Department issued a notice calling upon them to show cause as to why action should not be taken against them, under the provisions of the Central Excise Act, 1944 and the Rules made thereunder, for violation of the provisions mentioned in the notice. The Vigilance and Enforcement Wing of the Commercial Taxes Department seems to have forwarded a copy of the show-cause notice, issued by the Central Excise Department, to the assessing officer who, solely on the basis of the said show-cause notice, issued a show-cause notice to the petitioner, and after receipt of their objections thereto, passed assessment/reassessment orders. Sri S. R. R. Viswanath, learned counsel for the petitioners, would submit that there has as yet been no adjudication under the Central Excise Act, 1944; that the show-cause notice issued under the Central Excise Act, 1944 has been replied to in detail by the petitioner herein contending that none of the allegations was true and, in the absence of an adjudication under the Central Excise Act, 1944, the said show-cause notice issued by the Central Excise Department could not have formed the sole basis for initiating action against the petitioner either under the APVAT Act or the APGST Act. Learned counsel would submit that, even otherwise, the factum of sale was required to be established by the respondents and, in the absence of any finding being recorded that the job-work executed by the petitioner was in fact a sale, no orders could have been passed levying tax on the petitioner either under the APVAT Act or under the APGST Act. Sri P. Balaji Varma, learned Special Standing Counsel for the Commercial Tax Department would, on the other hand, submit that there is no prohibition in law precluding the assessing authority from relying on the show-cause notice issued by the Central Excise Department or the enquiry made thereafter and that the assessment/reassessment orders could not be faulted on that ground. It is not in dispute that the proceedings under the Central Excise Act, 1944 have, admittedly, not culminated in adjudication and still remain pending at the show-cause notice stage. No conclusive finding has as yet been recorded by any authority under the Central Excise Act, 1944 or the Rules made thereunder. If the petitioner has violated the provisions of the APVAT Act or the APGST Act or the Rules made thereunder, he could have been issued a show-cause notice on an enquiry under that Act and not based merely on the show-cause notice issued by the Central Excise Department. It was also open to the authorities under the APVAT Act and the APGST Act to have caused an independent enquiry and to have arrived at an independent conclusion regarding the nature of the transactions of the petitioner. In the present case, all that has been relied upon is the show-cause notice issued by the Central Excise Department and, in the absence of any adjudication under the said Act, no assessment order/reassessment orders could have been passed under the APVAT Act or under the APGST Act solely on the basis of the show-cause notice issued by the Central Excise Department. The impugned orders are required to be quashed on this short ground and they are, accordingly, quashed. Needless to state that it is always open to the respondents to issue a show-cause notice afresh, give the petitioner an opportunity of being heard and pass assessment/reassessment orders afresh in accordance with law. The writ petitions are allowed. In the circumstances, with no order as to costs.