IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND NINE PRESENT HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos. 52, 53 AND 54 OF 2009 WRIT PETITION NO : 52 of 2009 Between: 1 M/s. Alumeco India Extrusion Limited, (formerly Pennar Profiles Limited) [Formerly Progressive Aluminium Ltd.], Kallakal Village, Toopran Mandal, Medak District - 502 336, A.P., rep. by M. Ratnakar, Executive Director. 2 G. Pullaiah S/o. G. Hyma Rao, H.No.10-35/1, Medchal Post, Medchal Mandal, R.R.(District) A.P. 501401, rep. by M. Ratnakar, the authorized representative. ..... PETITIONERS AND 1 Commercial Tax Officer, Begumpet Circle, 5th Floor, Pavani Prestige, R.S. Brothers Buildings, Ameerpet, Hyderabad. 2 Additional Director General O/o. Additional Director General, Directorate General of Central Excise, Intelligence C-3, 'C' Wing, Rajaji Bhavan Besant Nagar, Chennai - 600 090. 3 Commissioner of Central Excise and Customs, Hyderabad-I Commissionerate Kendriya Sulkh Bhavan, L.B. Station Road, Basheerbagh, Hyderabad. .....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, order or direction more particularly one in the nature of Certiorari calling for the records of the 1st respondent relating to the impugned assessment order vide from VAT. 305 2003-04 dt 18-12-2008 for the year 2005-2006 which is absolutely without jurisdiction and is in violation of Articles 14 and 19 of the Constitution of India and quash the same and also the consequential demand notice Counsel for the Petitioner: Sri S.R.R.Viswanath Counsel for Respondent No.1: Sri P. Balaji Varma, Special Standing Counsel for Commercial Tax Counsel for Respondent Nos. 2 and 3: Sri A. Rajasekhar Reddy, Assistant Solicitor General WRIT PETITION NO : 53 of 2009 Between: 1 M/s. Alumeco India Extrusion Limited, (formerly Pennar Profiles Limited) [Formerly Progressive Aluminium Ltd.], Kallakal Village, Toopran Mandal, Medak District - 502 336, A.P., rep. by M. Ratnakar, Executive Director. 2 G. Pullaiah S/o. G. Hyma Rao, H.No.10-35/1, Medchal Post, Medchal Mandal, R.R.(District) A.P. 501401, rep. by M. Ratnakar, the authorized representative. ..... PETITIONERS AND 1 Commercial Tax Officer, Begumpet Circle, 5th Floor, Pavani Prestige, R.S. Brothers Buildings, Ameerpet, Hyderabad. 2 Additional Director General O/o. Additional Director General, Directorate General of Central Excise, Intelligence C-3, 'C' Wing, Rajaji Bhavan Besant Nagar, Chennai - 600 090. 3 Commissioner of Central Excise and Customs, Hyderabad-I Commissionerate Kendriya Sulkh Bhavan, L.B. Station Road, Basheerbagh, Hyderabad. .....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, order or direction more particularly one in the nature of Certiorari calling for the records of the 1st respondent relating to the impugned reassessment order vide Rc.No. 2004-05 APGST dated 18.12.2008 for the year 2004-2005 which is absolutely without jurisdiction and is in violation of Articles 14 and 19 of the Constitution of India and quash the same and also the consequential demand notice Counsel for the Petitioner: Sri S.R.R.Viswanath Counsel for Respondent No.1: Sri P. Balaji Varma, Special Standing Counsel for Commercial Tax Counsel for Respondent Nos. 2 and 3: Sri A. Rajasekhar Reddy, Assistant Solicitor General WRIT PETITION NO : 54 of 2009 Between: 1 M/s. Alumeco India Extrusion Limited, (formerly Pennar Profiles Limited) [Formerly Progressive Aluminium Ltd.], Kallakal Village, Toopran Mandal, Medak District - 502 336, A.P., rep. by M. Ratnakar, Executive Director. 2 G. Pullaiah S/o. G. Hyma Rao, H.No.10-35/1, Medchal Post, Medchal Mandal, R.R.(District) A.P. 501401, rep. by M. Ratnakar, the authorized representative ..... PETITIONERS AND 1 Commercial Tax Officer, Begumpet Circle, 5th Floor, Pavani Prestige, R.S. Brothers Buildings, Ameerpet, Hyderabad. 2 Additional Director General O/o. Additional Director General, Directorate General of Central Excise, Intelligence C-3, 'C' Wing, Rajaji Bhavan Besant Nagar, Chennai - 600 090. 3 Commissioner of Central Excise and Customs, Hyderabad-I Commissionerate Kendriya Sulkh Bhavan, L.B. Station Road, Basheerbagh, Hyderabad. .....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, order or direction more particularly one in the nature of Certiorari calling for the records of the 1st respondent relating to the impugned reassessment order vide Rc.No. 2784 2003- 04 APGST dated 18.12.2008 for the year 2003-2004 which is absolutely without jurisdiction and is in violation of Articles 14 and 19 of the Constitution of India and quash the same and also the consequential demand notice Counsel for the Petitioner: Sri S.R.R.Viswanath Counsel for Respondent No.1: Sri P. Balaji Varma, Special Standing Counsel for Commercial Tax Counsel for Respondent Nos. 2 and 3: Sri A. Rajasekhar Reddy, Assistant Solicitor General The Court made the following : COMMON ORDER: (Per Sri Ramesh Ranganathan, J) While Writ Petition No. 52 of 2009 arises under the Andhra Pradesh Value Added Tax, 2005 (for short, ‘the APVAT Act’), Writ Petition Nos. 53 and 54 arise under the Andrha 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. 2. 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. 3. Sri S.R.R. Viswanath, learned counsel for the petitioner, 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 were 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 works 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. 4. 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. 5. It is not in dispute that the proceedings under the Central Excise Act, 1944 has, admittedly, not culminated in adjudication and still remains 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. 6. 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 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. 7. The impugned orders are required to be quashed on this short ground and they are, accordingly, quashed. 8. 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. 9. The writ petitions are allowed. In the circumstances, with no order as to costs. ANIL R. DAVE, CJ RAMESH RANGANATHAN, J 22nd July, 2009 ks