IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF APRIL 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No. 9984/2017 (Excise) BETWEEN:
M/S. KEERTHI ENTERPRISES, A REGISTERED PARTNERSHIP FIRM AND CL-2 LICENSEE UNDER THE KARNATAKA EXCISE ACT, 1966, HAVING BUSINESS AT NO.8/3, MAGADI MAIN ROAD, TAVAREKERE, BENGALURU – 562 130.
REP. BY ITS MANAGING PARTNER SMT. LATHA …PETITIONER (BY SRI.RAJAGOPAL M.R., ADV.) And:
1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BENGALURU-560 001.
2. THE COMMISSIONER OF EXCISE GOVT. OF KARNATAKA 2ND FLOOR, BMTC TTMC BUILDING, A BLOCK, SHANTINAGAR, BENGALURU-560 027.
3. THE DEPUTY COMMISSIONER OF EXCISE BENGALURU URBAN DISTRICT (WEST) POORNIMA BUILDING, 1ST CROSS, J.C.NAGAR, BENGALURU-560 027.
4. THE DY.SUPERINTENDENT OF EXCISE GANDHINAGAR SUB DIVISION BDA COMPLEX, BANASHANKARI BENGALURU-560 070.
5. THE INSPECTOR OF EXCISE BASAVESHWARANAGAR RANGE, GOVINDARAJANAGARA MAIN ROAD, 22ND CROSS, BENGALURU-560 040. ... RESPONDENTS (BY SRI.KIRAN KUMAR T.L., AGA) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DTD:2.2.2017 ISSUED BY THE R-3 AS PER ANNEXURE-A CONSEQUENTLY DECLARE THAT THE IMPUGNED NOTICE IS VOID, SINCE R-3 ISSUED THE SAME WITHOUT PASSING THE ORDER ON THE EARLIER NOTICE DTD:22.7.2015 FOR THE VERY SAME CAUSE OF ACTION AS PER ANNEXURE-N BY WITHHOLDING AND SUPPRESSING THE OBJECTION FILED BY THE PETITIONER DTD:29.7.2015 AS PER ANNEXURE-P AND AGAINST TO THE PRINCIPLES OF NATURAL JUSTICE CONTRARY TO THE LAW AND FACTS ETC., THIS WRIT PETITION IS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the legality of the notice dated 02.02.2017, issued by the Deputy Commissioner of Excise, Bengaluru Urban District, Bengaluru.
2. Briefly the facts of the case are that the petitioner is a partnership firm, which was constituted on 30.05.2007. The firm was constituted between one Smt. Latha, and Kum. Spoorthi, for carrying on the business of buying and selling of Indian Made Foreign Liquor under license issued under Karnataka Excise Act and Rules, 1965, namely CL-1, CL-2 and CL-9. Initially, the partnership firm was registered under Rule 10-A of Karnataka Partnership (Registration of Firms) Rules, 1954.
3. After constitution of partnership firm, the firm obtained CL-2 license, under Section 26 of the Karnataka Excise Act, 1965, (`the Act’ for short). Subsequently, on 23.10.2014 a third partner namely Mr. V. Keerthi was inducted into partnership firm. On 25.10.2014, one of the original partners, namely Kum.V. Spoorthi retired from the partnership. Thus, the partnership firm was reconstituted.
4. By notice dated 22.07.2015, the Deputy Commissioner of Excise has informed the petitioner that since the partnership has been reconstituted without bringing the reconstitution of the partnership to the notice of the department, therefore, an enquiry would be held with respect to the change of partnership. On 29.07.2015, the petitioner replied to the same. However, by notice dated 02.02.2017, the petitioner has been asked to pay the license fees in force pertaining to year 2014-2015, to obtain the post-facto sanction for the change in the partnership firm, and to submit the necessary documents in order to obtain CL-2 license post-facto, under Rule 17-B Karnataka Excise Act, 1965, for the reconstituted partnership firm. Hence, this petition is before this court.
5. This Court has raised a specific query to the learned counsel for the petitioner as to how the petitioner is aggrieved by the notice dated 02.02.2017? For the notice merely directs the petitioner to take three steps, none of which can adversely affect the interest of the petitioner.
6. To this query, the learned counsel submits that since the notice has been issued after the petitioner had already replied to the notice dated 22.07.2015, the notice is nothing but almost an order. Moreover, according to the impugned notice, the petitioner is being required to pay the license fees for the year 2014-15. Therefore, the petitioner is adversely affected by the impugned order.
7. The stand being taken by the learned counsel for the petitioner is clearly untenable. For, if the petitioner feels that it is not liable to pay any license fees for the year 2014-15, it is not liable to seek post-facto sanction for the change in the partnership, and is not liable to submit any documents for transfer of the CL-2 license under Rule 17-B of the Rules, the petitioner is free to appear before the Deputy Commissioner and to explain the reasons as to why the notice should not be implemented.
8. Thus, this Court is of the opinion that without appearing before the Deputy Commissioner, the petitioner has pre-maturely rushed to this court. In catena of the cases, Hon’ble Supreme Court is of the opinion that mere issuance of notice does not necessarily violate the civil rights or fundamental rights of the person. For, a notice is merely an invitation to give an opportunity of hearing to a person. The person is free to appear before the concerned authority and to place his contentions, pleas, facts and evidence in order to convince the concerned authority. Therefore, this court does not find any merit in the present petition. The petitioner shall be free to appear before the Deputy Commissioner and to place his case.
9. It is, however, clarified in case the petitioner is aggrieved by any subsequent order passed by the Deputy Commissioner with regard to the notice dated 02.02.2017, the petitioner shall be free to challenge the same in accordance with law.
Sd/- Judge MH/-