IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTYIETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 8 9 2 7 of 2010 Between: M/s. Baidyanath Ayurved Bhavan (P) Ltd., Puranapul, Hyderabad, Represented by its Depot Manager, Mr. S. Sharma. ..... PETITIONER V/s. The Additional Commissioner (CT) Legal, A.P. Nampally, Hyderabad. & Ors. .....RESPONDENTS Counsel for the Petitioner : Sri A.K. Jaiswal Counsel for the Respondents : Sri A.V. Krishna Koundinya Spl. Standing Counsel for C.T. The Division Bench made the following : (Order follows 2nd page) THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 8 9 2 7 of 2010 ORAL ORDER: {Per the Hon’ble Smt.Justice T.Meenakumari} This writ petition has been filed seeking mandamus to declare the action of the first respondent in rejecting the stay application filed by the petitioner in respect of the assessment year 2004-05 under A.P.General Sales Tax in CCT’s Ref.No.L.III (2)/89/2010, dated 29-3-2010 (served on the petitioner on 13-4-2010) as illegal, arbitrary, against the provisions of the APGST Act and Rules besides being contrary to the authoritative pronouncements of this court and to pass such other suitable orders as this court may deems fit and proper in the circumstances of the case. 2. The Depot Manager of the petitioner-company has filed this writ petition challenging the stay rejection order passed by the Additional Commissioner of Commercial Taxes (Legal) (FAC), A.P. Hyderabad, who is the first respondent herein, in CCT’s Ref.No.L.III (2)/89/2010, dated 29-3-2010. 3. It is stated that the petitioner-company is a registered dealer and on the rolls of the Commercial Tax Officer, Lord Bazar Circle, Hyderabad, who is the third respondent herein, engaged in the business of sale of Ayurvedic medicines, which are manufactured by the petitioner’s manufacturing unit at Napur under the Drugs License issued by the Joint Commissioner, Food and Drugs Administration, Nagpur. It is stated that the petitioner has got a wholesale depot at Purnapul, Hyderabad, from where the petitioner sells ayurvedic medicines manufactured by them throughout the State of Andhra Pradesh. 4. It is stated that for the assessment year 2004-05, the third respondent levied tax on the sales of Aristhamas and Asavas as unclassified goods rejecting the petitioner’s claim that the products sold are drugs and medicines liable to be taxed under Entry No.37 of the First Schedule to the APGST Act. It is contended before the third respondent that the products sold by the petitioner are extracts of herbs, barks and leaves of medicinal plants and fruits which have medicinal properties and manufactured under the drugs license issued by the Joint Director, Food and Drugs Administration. But the third respondent passed assessment in G.I.No. 2254/2004- 05/APGST/ dated 29-3-2008 rejecting the claim of the petitioner and levied the tax on the sale of the products, treating them as unclassified goods. 5. Aggrieved by the order passed by the third respondent, the petitioner preferred an appeal before the Appellate Dy.Commissioner (CT), Panjagutta Division, Hyderabad. The appellate authority vide order in Appeal No.C/43/2008-09 dated 08-12-2009 confirmed the order of the third respondent by dismissing the appeal. 6. It is stated that the first respondent without appreciating the contentions raised before him and the evidence filed before the lower appellate authorities, simply rejected the stay application on the ground that the petitioner failed to prove their contention that Aristhams and Asavas are drugs and medicines with documentary evidence. It is further held by the first respondent that as to the trade names of these two products by which they are marketed by the petitioner in each of these two products and documentary evidence that the products are the ingredients recognised as medicines by any of the ayurvedic text books and exact nature of medicinal properties of these two products. However, the first respondent passed the impugned order rejecting the stay application of the petitioner. 7. Aggrieved of the order passed by the first respondent, the third respondent herein is threatening to initiate coercive steps for reovery of the disputed tax of Rs.2,78,361-00 for the assessment year 2004-05 under APGST. 8. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the first and third respondent but both of them have refused to grant stay vide the orders impugned herein. It is submitted that pursuant to the rejection of stay by the third respondent, the first is contemplating to take coercive steps for recovery of the disputed tax. 7. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 8. In the facts and circumstances of the case, we are of the opinion that the writ petition can be disposed of at the stage of admission directing the petitioner to deposit half of the disputed tax amount, as per the impugned order within a period of six weeks from the date of receipt of a copy of the order but however, the respondents are directed not to take coercive step for recovery of the balance disputed tax, pending finalisation of the appeal by the Appellate Tribunal. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. 8. With these directions, the writ petition is disposed of at the stage of admission. However, in the circumstances there shall be no order as to costs. _____________________ Justice T.Meena Kumari ___________________________________ Justice Nooty Ramamohana Rao 20-04-2010 I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOORTY RAMAMOHANA RAO WRIT PETITION No. 8 9 2 7 OF 2010 Judgment of the Division Bench delivered by the Hon'ble Smt. Justice T. Meenakumari) Circulation Entry No. 9 3 Date: 20-04-2010 COMPUTER No. 43 Court Master: I s L