Disposed

Shri. Keshav Shambhu Palyekar v. the Commissioner of Excise, Government of Goa and Anr.

Bombay HC8 Oct 2013WP/594/2013

Case brief

AI extract

What is this about?

This court examined a writ petition challenging an appellate order that remanded an excise matter. The court held the petitioner need not produce a non-existent survey report and clarified that an authority can discharge a show cause notice effectively rather than withdrawing it. The petition was disposed of with contentions kept open.

What the court decided

AI extract

Shri. Keshav Shambhu Palyekar Vs the… — Constitutional and Fundamental Rights | Bombay HC (2013)

¶1

IN THE HIGH COURT OF BOMBAY AT GOA

¶2

WRIT PETITION NO. 594 OF 2013

¶3

SHRI. KESHAV SHAMBHU PALYEKAR ... Petitioner Versus THE COMMISSIONER OF EXCISE, GOVERNMENT OF GOA AND ANR., ... Respondents

¶4

... Respondents

¶5

Mr. Ashwin D. Bhobe, Advocate for the Petitioner.

¶6

Ms. P. Bhandari, Addl. Government Advocate for the Respondents.

¶7

Coram:R. M. SAVANT, J. Date:8th October, 2013

¶8

P.C:

¶9

The order impugned in the above petition is the one dated 27/08/2013 passed by the Chief Secretary as the Appellate Authority exercising powers under section 40 of the Goa Excise Duty Act, 19654. By the said order, the Appellate Authority has set aside the order passed by the Commissioner, State Excise and remanded the matter back to the Commissioner to re-hear the complaint filed by the respondent no.2 herein after giving directions to the petitioner, who is the respondent in the appeal to produce the documents which are mentioned in paragraph 8 of the impugned order, vide clauses (i) and (ii). The said clauses are re-produced hereinunder for ready reference:

¶10

i. Survey plan along with the report of the land on which M/s. Mahalaxmi Bar & Restaurant is located.

¶11

¶12

ii. Record of Rights in Form I and XIV of the land on which the Bar is located.

¶13

The Appellate Authority has also observed that the Commissioner of Excise should note that he cannot withdraw the show cause notice issued to the respondent after completing the hearing of both the complainant as well as the respondent. It has further been observed that the Commissioner can only pass final orders based on the conclusion arrived at.

¶14

Insofar as the order passed by the Appellate Authority is concerned, exception is sought to be taken to clause (i) wherein the survey plan is directed to be produced along with the report of the land. It is the submission of Shri Bhobe that no report is furnished by the Land Survey Department and therefore it is not possible to comply with the said clause (i).

¶15

On behalf of the Land Survey Deaprtment, the Learned Additional Government Advocate Ms. Bhandari, on instructions, states that a report would be submitted along with the survey plan if an application to the said effect is made by the petitioner along with the prescribed fees.

¶16

In view of the said statement of the Learned Additional

¶17

¶18

Government Advocate the first grievance of the petitioner does not survive. The Learned Counsel appearing on behalf of the petitioner fairly accepts the same.

¶19

The second grievance of the petitioner is that the Appellate Authority has erred in observing that the Commissioner of Excise cannot withdraw a show cause notice after completing the hearing of both the complainant as well as the respondent.

¶20

Insofar as the said second grievance is concerned, there is merit in the said contention as an authority who is vested with the powers of adjudication pursuant to the show cause notice, if satisfied can obviously pass an order holding that the show cause notice stands discharged or disposed of. The Appellate Authority has therefore erred in observing that the Lower Authority which has issued the show cause notice cannot withdraw the same. If the authority on a consideration of the matter discharges the show cause notice or disposes of the same, it would not amount to withdrawal of the same. Hence, insofar as the said part of the order which is at paragraph 10 is concerned, the same stands clarified as above.

¶21

No notice is issued to the respondents in the light of the order to

¶22

¶23

be passed.

¶24

With the aforesaid observations the Writ Petition is disposed of. Needless to say that the contentions of the parties are kept open to be urged before the Commissioner of Excise, who would deal with the same in accordance with law.

¶25

R. M. SAVANT, J.

¶26

ap/-

Shri. Keshav Shambhu Palyekar v. the Commissioner of Excise, Government of Goa and Anr.

Case brief

What is this about?

What the court decided

Shri. Keshav Shambhu Palyekar v. the Commissioner of Excise, Government of Goa and Anr.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. Trimurti Exports through Its Authorized Rep. (Partners) and 3 Ors. Vs M/S. Modelama Exports Ltd. Rep. by Its Director Sh. Gagan Gulati

Mr. Roque Fernandes and 10 Ors. Vs Mrs. Rosy Fernandes and 25 Ors.

M/S. Saldhana Builders Pvt. Ltd. through Its Director Shi. Virtej Veerdhawal Ghag Vs Goa Industrial Development Corporation through Its Managing Director and 3 Ors.

The Manager Vs Shri. Gurudas Sadanand Borkar

Shri. Abhijit B. Patil Vs State of Goa and Anr.

Miss. Jayanti Baburao Gawas Vs State through P.P. and Anr.