Karnataka High Court
M/S. Avant Garde Hospitality Pvt. Ltd., vs State Of Karnataka on 9 October, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 09TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.38239/2017 (EXCISE)
BETWEEN:
M/S. AVANT GARDE HOSPITALITY PVT. LTD.,
BUILDING No.24, UNIT No.202 & 203
2ND FLOOR, UB CITY, VITTAL MALLYA ROAD
BANGALORE.
REP. BY ITS MANAGING DIRECTOR
Mr. ABHIJIT SAHA.
...PETITIONER
(BY SRI. SUNDARAMURTHY, ADV.,)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
VIDHANA SOUDHA,
BANGALORE-560 001.
2. DISTRICT COMMISSIONER
BANGALORE URBAN DISTRICT (SOUTH)
KHANDAYA BHAVAN, K.G. ROAD
BANGALORE-560 001.
3. COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT
BMTC BUS COMPLEX
K.H. ROAD, SHANTHI NAGAR
BENGALURU-560 027.
4. DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
Date of Order 09-10-2017 W.P.No.38239/2017
M/s. Avant Garde Hospitality Pvt. Ltd., Vs.
State of Karnataka & Others
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KEMPEGOWDA ROAD,
BENGALURU-560 009.
...RESPONDENTS
(BY SRI. A.M. SURESH REDDY, AGA)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE SHOW
CAUSE NOTICE DTD:23.3.2017 VIDE ANNEX-A PASSED BY THE
R-2 & ETC.,
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. Sundaramurthy, Adv. for Petitioner Mr. A.M. Suresh Reddy, AGA for Respondents
1. The petitioner has filed this petition challenging the show-cause notice issued by the Respondent-District Commissioner, Bangalore Urban District (South), Bangalore, in pursuance of the remand order passed by the Excise Commissioner Annexure-E dated 12.12.2014 with regard to the re-determination of the amount of fine/damages under Rule 14(2) of the relevant Excise Rules.
2. The learned counsel for the petitioner submits that the impugned show-cause notice has been issued Date of Order 09-10-2017 W.P.No.38239/2017 M/s. Avant Garde Hospitality Pvt. Ltd., Vs. State of Karnataka & Others 3/6 by the "District Commissioner, Bangalore Urban District, (South), Bangalore", whereas the remand of the case was to the "Deputy Commissioner of Bangalore Urban District".
3. The learned counsel for the Respondents- Department however submits that the show-cause notice has been issued by the same Authority to whom the matter was remanded back by the learned Excise Commissioner and the words "Zilladhikari" (only means 'Deputy Commissioner') and there is no separate District Commissioner as is sought to be contended and therefore, the show cause notice in pursuance of the remand order has been issued by the same Authority having the jurisdiction to decide the said issue. He also submitted before the Court that this Court has decided this controversy by a detailed judgment in the case of M/s.High Point Hotels Pvt. Ltd., vs. The Excise Commissioner in Karnataka, Bengaluru & Others Date of Order 09-10-2017 W.P.No.38239/2017 M/s. Avant Garde Hospitality Pvt. Ltd., Vs. State of Karnataka & Others 4/6 on 18.08.2017 in W.P.No.27575/2017 & Connected matters.
4. The relevant extract of the judgment given by this Court in the aforesaid case is quoted below for ready reference:-
"27. This Court is further of the view that the said fiscal liability in the name of Penalty under Rule 14 (2) of the Excise Rules of 1968 is actually the price or the liquidated damages to be paid by the Excise Licencees or vendors of liquor for the breach of contract on their part for short- lifting of the prescribed quantity of liquor from the State Beverage Corporation. That is why there is no need to go into the question of mens rea or opportunity of hearing or raising an objection in that regard was considered appropriate in the aforesaid case in Lakshmi Bar and Restaurant case (supra), decided by this Court on 27/06/2017 and the requirement of giving such opportunity wherein Rule 14(2) was restricted in the case where the licence itself was sought to be cancelled for the said reason of short-lifting of the liquor.
Date of Order 09-10-2017 W.P.No.38239/2017 M/s. Avant Garde Hospitality Pvt. Ltd., Vs. State of Karnataka & Others 5/6
28. This Court also does not find any merit in the contention No.III that measure of Penalty under Rule 14 (2) cannot be assailed on different price range for different types of liquor. It is for the Legislature to adopt such measure and no illegality or arbitrariness is seen in such a measure adopted in Rule 14(2) in the present case.
29. This Court has also noticed that in none of the cases, the petitioners have even raised any such objections or reasons for such short lifting of liquor. Had it been so raised, the authority concerned of the Excise Department could have been expected to pass appropriate orders in this regard. Having not done that, the petitioners cannot be permitted to raise the said plea of alleged breach of principles of natural justice to get the demand notices quashed on the said ground".
30. Having said as above, this Court is of the view that while upholding the levy, about its mathematical computation and assessment, the petitioners can be given even now an opportunity of hearing. Therefore, the Respondent authorities are directed to pass speaking adjudication orders, in cases where Objections are now filed about the quantum of penalty and damages Date of Order 09-10-2017 W.P.No.38239/2017 M/s. Avant Garde Hospitality Pvt. Ltd., Vs. State of Karnataka & Others 6/6 under Rule 14 (2) of the Excise Rules of 1968, within a period of one month from today. However, no objection as to the very levy shall be entertained by them. The petitioners are permitted to file such Objections within one month from today and thereafter a period of two months is allowed to the respective authorities to pass such orders thereon. No extension of time would be permitted to any of the parties in this regard.
31. Petitions are accordingly disposed of with aforesaid observations. No order as to costs".
5. In view of this, the present petition has no force and the petitioner is directed to attend the proceedings before the concerned Deputy Commissioner, Bangalore Urban District, Bangalore, in pursuance of the remand order passed by the Excise Commissioner.
6. The petition is accordingly disposed of. No costs.
Sd/-
JUDGE Srl.