Andhra Pradesh High Court - Amravati
Ball Beverage Packaging (India) ... vs Union Of India And Others on 20 September, 2024
APHC010380602024 Bench Sr.No:-6
IN THE HIGH COURT OF ANDHRA PRADESH
[3483]
AT AMARAVATI
WRIT APPEAL NO: 751 of 2024
Ball Beverage Packaging (India) Private Limited,
represented through its authorized representative,
Shri Gurmit Singh.
...Appellant
Vs.
Union of India and others ...Respondents
**********
Mr. Avinash Desai, Senior Counsel, appearing for Mr. Sai Sundeep
Manchikalapudi, Advocate for the appellant.
Deputy Solicitor General of India, Advocate for respondent No.1.
Mrs. S. Pranathi (Special Government Pleader), Advocate for Respondent
Nos.2 & 3.
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE RAVI CHEEMALAPATI
DATE : 20th September, 2024
PC:
The present writ appeal has been preferred against the judgment and
order, dated 17.08.2023 in WP.No.20580 of 2023.
2. By virtue of the judgment and order impugned, the learned single
Judge has expressed an opinion that the petitioner (appellant herein) ought to
have availed the alternate remedy by way of an appeal under Section 11 of
the Building and Other Construction Workers' Welfare Cess Act, 1996.
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3. Briefly stated, the material facts are as under:
A notice, dated 04.09.2018, came to be served upon the petitioner by
the Joint Commissioner of Labour, Zone-IV, Kurnool, requiring the petitioner to
pay cess @ 1% on the construction cost of the work in respect of the
establishment of the petitioner namely M/s. Ball Beverage Packing (India)
Private Limited. The petitioner was asked to produce detailed information in
Form I of the Building and Other Construction Workers' Welfare Cess Rules,
1998 [for short, 'the Rules'] duly enclosing the records and documents
containing information with regard to the construction of the work. The
petitioner also stood informed that failure to do the needful would result in
passing of an assessment order in terms of Section 5 of the Building and
Other Construction Workers' Welfare Cess Act, 1996 [for short, 'the Act'] read
with Rule 7 of the Rules.
It appears that the petitioner did respond to the said notice vide
communication dated 21.09.2018. In the said communication, the petitioner
claimed that an amount of Rs.33,86,790/- had been paid as cess in discharge
of its liability under the aforementioned Act.
It also appears that a final order of assessment, dated 10.05.2023, was
passed requiring the petitioner to pay the balance amount of cess calculated
at Rs.5,12,31,210/-.
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It is not out of place to mention here that between the period when the
show cause notice was issued and the final order of assessment came to be
passed, there were a number of communications whereby the petitioner was
sensitized that it had failed to file the returns as was otherwise required in
terms of the Rules and the show cause notice, dated 04.09.2018.
4. Mr. Avinash Desai, learned Senior Counsel appearing for the
appellant, states that assuming that the appellant (petitioner) had failed to file
the returns in terms of the show cause notice and had failed to furnish the
relevant data which would enable the authority concerned to calculate
correctly the cess amount, yet, an additional affidavit has been filed which is
accompanied with the certificate of the Chartered Accountant reflecting that
the total cost of construction of the project initiated by the petitioner was
Rs.166,90,41,287/-.
It is stated that although the cost of the entire project was Rs.532.21
crores, yet, the project cost included the cost of machinery also which cannot
be included in the cost of construction in terms of the provisions of the Act.
5. On a perusal of the order impugned in the writ petition, it does
appear that the authorities have taken into consideration the entire project
cost as the cost of construction for purposes of calculating the cess which is
payable by the petitioner. The order of assessment does not draw any
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distinction between the actual cost of construction as also the cost of the plant
and machinery which was installed in the said facility.
6. Notwithstanding the fact that the petitioner does have a remedy of
an appeal against the order of assessment, yet, we feel that the order of
assessment does not have any basis for arriving at a figure of
Rs.5,46,18,00,000/- as being the total cost of construction incurred by the
petitioner, considering the certificate of the Chartered Accountant which has
been placed on record.
7. In our view, interest of justice would be best served if the matter
is remanded to the concerned authority for determination of the liability of the
petitioner de novo considering the fact that the initial replies submitted by the
petitioner were either not satisfactory or not in compliance with the
requirement of the provisions of the Act and the Rules framed thereunder.
8. We, accordingly, set aside the judgment and order impugned and
remand the matter to consider the matter afresh by the assessing authority
concerned. The petitioner (appellant herein) shall file all the relevant
information in the prescribed format as also the documents which were
otherwise required to be furnished in terms of the show cause notice, dated
04.09.2018. The needful will be done within one week from today. The
authority concerned shall be at liberty to seek any further information as it
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deems necessary to arrive at the correct figure for purposes of determining
the liability of the petitioner.
9. The Writ Appeal is, accordingly, allowed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ
RAVI CHEEMALAPATI, J
Vjl
