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TMI Blog2004 (3) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... at 10 per cent and also to restrain the respondents from enforcing the said Act and alternatively to restrain the respondents from levying and collecting additional excise duty and/or the proportionate share of additional excise duty under the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. This court while entertaining the writ petition by its order dated July 28, 1999, issued notice of motion and notice on the interim prayer. Nothing happened thereafter till filing of two miscellaneous application being Misc. Case No. 915 of 2001 and Misc. Case No. 916 of 2001. In Misc. Case No. 916 of 2001, a prayer for certain amendments to the writ petitions was made in view of the amendments brought to the Assam Taxation (On Luxuries) Act, 1997 by enacting the Assam Taxation (On Luxuries) (Amendment) Act, 2000 assailing the legality and validity of the Amendment Act of 2000. By incorporating various paragraphs in the writ petition by way of amendment, an amendment to the prayer made in the writ petition was also sought by way of addition of a prayer for a direction to the respondents to refund the tax already paid under the impugned Act and Amendment Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 to explain as to why their taxable turnover should not be determined as indicated in the show-cause notice for the period from July 1, 1998 to November 30, 2003. The petitioner on receipt of the said show-cause notice has approached this court by filing the miscellaneous application in the pending writ petition assailing the legality and validity of the said show-cause notice. Incidentally it may be mentioned that although a prayer has been made in the application for stay of the said show-cause notice purportedly issued by respondent No. 4, there is no such respondent in the writ petition. The authority, which has issued the show-cause notice is the Superintendent of Taxes, Guwahati, Unit-A, Circle-7. No prayer has been made seeking any amendment to the writ petition by way of making a challenge to the said show-cause notice. I have heard Mr. P.K. Goswami, learned Senior Counsel appearing for the petitioner assisted by the learned counsel Mr. V.M. Thomas and Mr. K. N. Choudhury, learned Senior Counsel assisted by the learned counsel Mr. I. Choudhury, appearing for the respondents. The basic thrust of argument of Mr. Goswami is that the impugned notice could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully evading tax in contravention of the said provisions. According to him the show-cause notice dated January 13, 2004 has been issued on a genuine ground that basic price had not been included in the value of stock of luxuries. Mr. Choudhury also relied upon three decisions as Varshney General Sales v. State of U.P. reported in [2003] 130 STC 202 (All), Ghodawat Pan Masala Products (I) Ltd. v. State of Karnataka [2003] 130 STC 276 (Karn) and Ghodawat Pan Masala Products (I) Ltd. v. State of Maharashtra [2003] 130 STC 310 (Bom) in support of his submission that similar Act imposing luxury tax on stocking has been upheld by various High Courts. He has also referred to the decisions as Venkateshwara Theatre v. State of Andhra Pradesh [1995] 96 STC 130 (SC); [1993] 3 SCC 677, A.B. Abdul Kadir v. State of Kerala AIR 1976 SC 182, H. B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath Sons [1990] 77 STC 1 (SC); [1992] Suppl 2 SCC 312, Union of India v. Metal Box Co. of India Ltd. [1996] 11 SCC 122 and Union of India v. Sudarshan Plywood [1997] 2 GLR 105. All these decisions have been pressed into service to bring home his argument about the legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed January 13, 2004 made a request to the Superintendent of Taxes to grant extension of time and to fix the date of personal hearing on February 20, 2004, which was duly allowed. Thereafter once again by letter dated February 16, 2004 the petitioner prayed for further extension of time. Thus the petitioner after submitting to the jurisdiction of the said authority and praying for extension of time for appearance approached this court by filing the instant application. This position could be gathered from the affidavit-in-opposition filed by the respondents, which, however, was never disclosed by the writ petitioner. The petitioner has filed the miscellaneous application in the pending writ petition only for the purpose of obtaining an interim order by way of stay of the impugned show-cause notice without, however, making any prayer for amendment of the writ petition as was done on the earlier occasion by filing Misc. Case No. 916 of 2001. Such an application has been filed on the strength of the pending writ petition which is yet to be admitted. The basic ground towards urging for entertaining such an application is that since the writ petition is pending disposal and the very A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion and the same has been kept pending for the last about five years at the motion stage. The petitioner remained totally oblivious of the said proceeding except on two occasions, i.e., the present one and at the time of the interim order obtained by filing Misc. Case No. 915 of 2001. In the miscellaneous application, a bold statement has been made that the respondents have not responded to the writ proceeding by filing any affidavit-in-opposition totally unmindful of the fact that it is the petitioner who is at fault by not complying with the order dated September 19, 2001 passed in M.C. No. 916 of 2001 by which while allowing the amendments, a direction was issued to file the amended writ petition within two weeks. The amended writ petition has been filed on March 2, 2004 after nearly about three years of the order of amendment as against the stipulated time-limit of two weeks and yet the delay has been attributed to the respondents as regards non-filing of any affidavit-inopposition. In the affidavit-in-opposition filed on behalf of the respondents, it has been stated that the Act in question was enacted by the State Legislature in terms of entry 62 of List II of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the writ petition. If any authority is required to such a proposition, one may refer to the decisions of the apex court as reported in T.N. Godavarman Thirumulpad v. Union of India [2000] 10 SCC 494 and Special Director v. Mohd. Ghulam Ghouse AIR 2004 SCW 416. In the case of Mohd. Ghulam AIR 2004 SCW 416, the apex court observed in paragraph 5 of the judgment as follows: This court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice ought not to have been issued unmindful of the fact that the writ petition itself is yet to be admitted and that there has been no endeavour on the part of the petitioner for early disposal of the writ petition. By filing the miscellaneous application, the petitioner has only prayed for stay of the show-cause notice, without, however, formally assailing the legality and validity of the same. Thus, the pending writ petition has been made the basis for invoking the jurisdiction of the court only for the purpose of making and granting of interim prayer. Be that as it may and without expressing any opinion on the merit of the case on which the learned counsel for the parties extensively argued, I am of the considered opinion that the miscellaneous application is not maintainable and liable to be dismissed. Accordingly, same is dismissed. In view of the dismissal of the miscellaneous application, the petitioner shall now respond to the show-cause notice issued to them urging the grounds as may be available to them without any further delay and thereafter the matter should be brought to its logical end by the concerned authority in accordance with law. The miscellaneous ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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