IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO : 13422 of 2008 Between: 1 G. Viswanadh Babu S/o. Papa Raju R/o. D.No. 11/304-1, Machilipatnam Town, Krishna District, Licensee of M/s. Vijaya Krishna Restaurant and Bar 2 Nallamothu Venkateswara Rao S/o. Veera Raghavaiah R/o. 12/40, Eluru Road, Gudivada Town and Mandal, Krishna District, Licensee of M/s. Alankar Restaurant and Bar 3 N.V. Suresh Babu S/o. Venkateswara Rao R/o. D.No. 4/51, Bus Stand Road, Gudivada, Krishna District, Licensee of M/s. Srinivasa Restaurant and Bar ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh,Rep. by the Commissioner of Excise, Hyderabad. 2 Deputy Commissioner for Prohibition and Excise, Vijayawada, Krishna District. 3 The Prohibition and Excise Superintendent Machilipatnam, Krishna District. 4 The Station House Officer, Excise Department, Machilipatnam, Krishna District. 5 The Station House Officer, Excise Department, Gudivada, Krishna District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Mandamus or any other appropriate writ or direction declaring the action of the 3rd Respondent in issuing proceedings in c No. 169/2008/A2 dt. 18-5-2008 in respect of the petitioner's Restaurant and bars shown at Sl.No. 2,5, and 8 respectively as illegal, arbitrary and one without jurisdiction and pass such other order or orders. Counsel for the Petitioners:MR.O.MANOHER REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO :13422 of 2008 ORDER: The three petitioners herein were granted Bar and Restaurant Licences under the provisions of Andhra Pradesh Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005, during the excise year 2005-06. They are currently pursuing the same business on renewal of the licences. By an order of the 3rd respondent dated 18.5.2008 and on the ground that an audit report recorded non-levy of 10% additional licence fee from certain enumerated Bar and Restaurant Licensees including the petitioners, the 3rd respondent determined the liability of the petitioners for payment of the 10% additional licence fee and directed the Station House Officers of Machilipatnam and Gudivada to collect the quantified amount representing the 10% additional fee from the petitioners on the ground that their premises have non-contiguous consumption rooms in more than one floor. The 3rd respondent issued the directive impugned dated 18.5.2008, without notice and opportunity to the petitioners. That is the pleading in the writ petition. The learned Government Pleader for Excise appearing for the respondents on instructions admits the factual position and states that no such notice or opportunity was given to the petitioners. In the writ petition, the petitioners specifically pleaded that the business premises for which the licence was granted is one enclosure and a single premises and does not constitute non-contiguous consumption rooms and as such the levy is illegal. Had the 3rd respondent issued a notice and provided an opportunity to the petitioners, they would have stated this objection and thereafter the 3rd respondent would have come to a rational conclusion on a judicious ascertainment of the facts. The failure to observe the principles of natural justice is thus fatal to the determination of liability by the impugned order by the 3rd respondent. However, in order to obviate the dilatory administrative process, it is declared that the order of the 3rd respondent bearing Rc. No.169/2008/A2, dated 18.5.2008, shall be treated by the parties herein as a show cause notice. The petitioners may submit their objections to the proposed determination of the liability of 10% additional duty within one week from the date of receipt of a copy of this order. On receipt of such objections, if any, filed by the petitioners within the time stipulated above, the respondent shall pass an order afresh and communicate the same to the petitioners if the 3rd respondent comes to the conclusion that the petitioners are liable to pay 10% additional levy. Till such a fresh order is passed, no coercive steps shall be taken against the petitioners pursuant to the order of the 3rd respondent dated 18.5.2008. The writ petition is disposed of as above, after hearing the learned Government Pleader for Excise at the stage of admission. There shall be no order as to costs. ____________________ GODA RAGHURAM,J DATE: 26th June, 2008 pnb To 1 The Commissioner of Excise, Government of Andhra Pradesh, Hyderabad. 2 The Deputy Commissioner for Prohibition and Excise, Vijayawada, Krishna District. 3 The Prohibition and Excise Superintendent Machilipatnam, Krishna District. 4 The Station House Officer, Excise Department, Machilipatnam, Krishna District. 5 The Station House Officer, Excise Department, Gudivada, Krishna District. 6 2 c.cs. to the Govt. Pleader for Excise, High Court Buildings, Hyderabad. 7 2 C.D. copies ..... REGISTRAR // TRUE COPY // SECTION OFFICER