Patna High Court - Orders
Colona Blenders & Bottlers ( India ) Pvt. ... vs The State Of Bihar & Ors on 19 July, 2018
Bench: Chief Justice, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15316 of 2017
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United Spirits Limited
... ... Petitioner/s
Versus
The State of Bihar & Ors
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 16716 of 2017
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Colona Blenders & Bottlers ( India ) Pvt. Ltd & Ors
... ... Petitioner/s
Versus
The State of Bihar & Ors
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Balbir Singh, Sr. Advocate
Mr. Aditya Mukherjee, Advocate
Mr. Satyabir Bharti, Advocate
Mr. Alok Chandra, Advocate
Ms. Aparna Arun, Advocate
For the Respondent/s : Mr. Lalit Kishore - Sr. Advocate
Mr. Bishwa Bhibhuti Kumar Singh, Advocate
For Beverage Corporation: Mr. Girijesh Kumar, Advocate
Mr. Vikas Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
8 19-07-2018Both these writ petitions were filed claiming refund of bottling and licence fee, label renewal fee and refund of VAT and Excise Duty paid in advance before coming into force of the Bihar Prohibition and Excise Act, 2016 with effect from 5th of April, 2016.
While dealing with the issue on various dates, we Patna High Court CWJC No.15316 of 2017(8) dt.19-07-2018 2/5 were apprised that the competent authority of the State Government would hear the petitioners and consider the question of refund after hearing them. Accordingly, on 12.04.2018 we granted time to the State Government with regard to hearing the petitioners and taking a decision in the matter. Time was extended and finally on 21.06.2018 we directed the State Government to positively pass an order by 26 th of June, 2018 and submit it to this Court along with an affidavit of the competent authority a copy of the order that has been passed. In pursuance to the said order, in both the cases two different counter affidavits have been filed. In C.W.J.C. No. 15316 of 2017 the Deputy Commissioner Commercial Taxes (HQR), Patna has filed an affidavit on 11th of July, 2018 along with an assessment order and certain demand notices, which goes to show that assessment of tax has been done by issuing notice purportedly under Section 31 of the Bihar Value Added Tax Act. The notice was issued on 27.06.2018. The assessment order was passed on 27.06.2018 and surprisingly there are two different assessment orders for the same year in the said writ petition. By passing the assessment order now it is tried to be indicated that even though petitioners were entitled to certain refund but in view of the tax payable by them, no refund is to be Patna High Court CWJC No.15316 of 2017(8) dt.19-07-2018 3/5 made.
Similarly, in the other writ petition C.W.J.C. No. 16716 of 2017 an affidavit has been filed by Respondent No. 3, the Excise Commissioner indicating the amount which is to be refunded to the petitioner but instead of passing any order for refund, an order has been passed, which is available at Page-8 of the counter affidavit and the order, which reads as under:-
"Therefore this Court directs the Assistant Commissioner of Excise, Patna to pay the dues payable to the petitioner in the form of Excise Duty, lebel Registration and movement fees a persuance of the Gazette Notification no. 337 dated 18 April, 2016, after obtaining. The Petitioner are directed to submit their written submission regarding all the demands within 7 days except the demand related to Vat Duty, for which the petitioner can represent his grievances before the Commercial Tax Department."
is not at all clear and incapable of being understood.
Having considered the submission, we are of the considered view that looking to the nature of grievance made in the writ petition, we had directed the competent authority to pass an order with regard to the amount which is to be refunded to the petitioner and thereafter we would have granted them liberty to recover the tax, if any, in accordance with law i.e. after issuing notice for demand, conducting the assessment Patna High Court CWJC No.15316 of 2017(8) dt.19-07-2018 4/5 proceedings, pass an assessment order and thereafter proceed to recover in accordance with law. Instead of doing so, the officers concerned have devised a noble method. At one hand, they in a vague manner, determined the amount to be refunded to the petitioners and on the other hand conduct the assessment proceedings totally disregarding the statutory provision and in violation thereof.
We do not approve of such an attitude of the officers. Before taking action in the matter, we direct the counsel for the State to seek instructions as to how and under what circumstances this action was taken by the officer concerned and we warn them that if we are not satisfied with their explanation, we would take coercive action including the action for contempt against the officers concerned.
As a matter of last indulgence, we direct for listing of the matter on 31st of July, 2018 with a hope that the officers shall determine the question of refund to the petitioners, pass an appropriate order for refund and thereafter reserve their right to recover the tax due in accordance with law after following the due process as is contemplated under the statute.
A copy of this order be given to the counsel representing the State Government for necessary compliance. Patna High Court CWJC No.15316 of 2017(8) dt.19-07-2018 5/5 List on 31st of July, 2018.
(Rajendra Menon, CJ) (Rajeev Ranjan Prasad, J) P.K.P./-
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