Case: M/S. Siemens Ltd Vs. State Of Maharashtra

3. The appellant is a multi location company. It has a factory and godown at Kalwe. It pays cess for the goods supplied from the said factory in terms of the provisions of the Bombay Provincial Municipal Corporation Act, 1949. It also owns a factory at Aurangabad. Its office is at Kharghar. The said factory at Aurangabad and the office at Kharghar are outside the jurisdiction of the city limits of Navi Mumbai and, thus, outside the territorial jurisdiction of the Bombay Municipal Corporation. Supplies are made to dealers directly from the appellants factory situated at Aurangabad and office at Kharghar. However, the establishment of the appellant at Kalwe was directed to pay taxes, although according to it, no jurisdictional fact exists therefor.4. The demand was made terming the same as a show cause notice. It appears that in course of routine investigation, some vendors had made certain complaints as regards the transactions of goods from the appellants factory at Kalwa. The appellant made its representation on receipt of the said purported demand. Oral and written submissions were also made on 2.05.2005 and 10.06.2005 stating that the appellant had neither been receiving any goods within the local limits of Respondent No. 2 nor was it an importer in respect of the goods directly sold from its Aurangabad factory or from its sub-vendors manufacturing premises and, therefore, they were not liable to pay any cess thereupon.5. By reason of a purported show cause notice, the appellant was directed to make payment of cess with interest immediately in respect of the purported supplies made to Navi Mumbai parties right from 1.06.1996. It was, however,are also requested to attend at above address at 11.00 a.m. on 4.7.05 hearing. I am enclosing herewith the photocopies of the bills raised by Aurangabad Daman divisions to the Navi Mumbai Vendees.A writ petition was filed by the appellant herein questioning the said purported notice. By reason of the impugned order, the High Court refused to exercise its jurisdiction under Article 226 of the Constitution of Indiais to a show cause notice issued by the Corporation demanding certain payment of cess on the value of goods imported from Aurangabad and Daman. Petitioners may file their reply to the show cause notice and produce the relevant documents within two weeks. In case the order is adverse to the petitioner no recovery shall be made for a period of four weeks from the date of service of the order on the petitioner.Before this Court a counter affidavit has been filed wherein although inter alia it was contended that the said show cause notice cannot be termed as an order determining the rights and obligations of the parties, it has clearly beensay that the show cause notice dated 22.6.2005 at Annexure P-2 to the Special Leave Petition indicates that the Respondent No. 2 Corporation has been deprived of lawful recovery of Cess on the said goods imported within the jurisdiction of the Respondent Corporation. I say that such evasion of Cess is in huge amounts and it is perfectly within the rights of the respondent Corporation to call upon all the parties involved in the transactions to arrive at the exact finding of fact. I say that for arriving at the finding of fact with regard to the said imports there are many facts which need to be taken into account. I say that such factual aspects include : which is the party which has imported the goods within the jurisdictional limits of the respondent Corporation what is the nature of contract between the seller and the said importer of goods, is there any mechanism used by the parties to avoid payment of Cess on the said import of goods, what is the extent of Cess that is evaded as a result of such mechanism and who ultimately can be held responsible both for the purposes of recovery as also for the purpose of penalty.It was furthersay that it is well known that under the Bombay Provincial Municipal Corporation (Cess on Entry of Goods) Rules 1996 goods purchased from registered dealers are not subject to Cess. I say that in this view of the fact the entire nature of the transactions, to which the petitioner also was party, need to be examined and scrutinized from the perspective of recovery of cess and identification of liability. I say that if the petitioner has directly or indirectly supplied the goods the petitioner itself must come forward to cooperate with the respondent Corporation to enable it to discharge its duties prescribed under the B.P.M.C. (Cess on Entry of Goods) Rules, 1996 read with B.P.M.C. Act

Reasoning:
13. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.