# M/S Dev Priya Indus. Pvt. Ltd v. Cess Appellate Comm., U.P. Pollution Control Board, Lko. & Ors

- **Citation:** (2023) 10 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Writ Tax No. 195 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-dev-priya-indus-pvt-ltd-v-cess-appellate-comm-u-p-pollution-control-board-49534
- **Pages:** 4

## Headnote

Act, 1977 - Section 13 - Assessment orders
passed without disclosing reasons and without
affording opportunity of hearing-violation of
principles of natural justice-merely providing
an
appellate
remedy
cannot
cure
such
foundational defect-appeal under Section 13 of
the Water (Prevention and Control of Pollution)
Cess Act, 1977 not a substitute for predecisional hearing-impugned orders quashed
with liberty to pass fresh orders in accordance
with law.

Case Law Discussed:

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In light of the above, sufficient
grounds exist for condonation of delay. The
appellants have been able to demonstrate
the reasons for the delay, where on one
occasion their Finance and Accounts
Officer suffered a heart attack while the
Regional Manager who grants approval
retired. It is further noticed that the delay
was between 62 to 242 days and the same
having been adequately explained and
already discussed by this Court, substantial
grounds exist for condonation of delay.
Accordingly, all the appeals are allowed.
The appeals are remanded to the Real
Estate Regulatory Authority for being
decided on merits.

23. Let the appeals be decided
expeditiously in accordance with law
without
giving
any
unnecessary
adjournments.
----------
(2023) 10 ILRA 800
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ Tax No. 195 of 2023

M/S Dev Priya Indus. Pvt. Ltd....Petitioner
Versus
Cess Appellate Comm., U.P. Pollution
Control Board, Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Samita Chitranshi

Counsel for the Respondents:
A.S.G.I., Ashok Kumar Verma

Water (Prevention and Control of Pollution) Cess
Act, 1977 - Section 13 - Assessment orders
passed without disclosing reasons and without
affording opportunity of hearing-violation of
principles of natural justice-merely providing
an
appellate
remedy
cannot
cure
such
foundational defect-appeal under Section 13 of
the Water (Prevention and Control of Pollution)
Cess Act, 1977 not a substitute for predecisional hearing-impugned orders quashed
with liberty to pass fresh orders in accordance
with law.

Case Law Discussed:

1. Whirlpool Corporation Vs Registrar of
Trademarks, Mumbai & ors. - (1998) 8 SCC 1

2. Tin Box Company Vs CIT, New Delhi - (2001)
9 SCC 725

3. M/s Dharampal Satyapal Ltd. Vs Dy.
Commissioner of Central Excise, Gauhati & ors.
- (2015) 8 SCC 519

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Ms. Samita Chitranshi, learned
counsel for the petitioner, Sri Ashok Kumar
Verma, learned counsel appearing on behalf of
the respondent nos. 2 and 3 and perused the
material brought on record.

2. The present writ petition is being
disposed of with the consent of the parties as
the preliminary issue raised before this Court
pertains to not adherence of principles of
natural justice.

3. The facts in brief are that the petitioner
claims to be running an industry, which
consumes water and is liable to pay cess in
terms of the provisions of Water (Prevention
and Control of Pollution) Cess Act, 1977
(hereinafter referred as Cess Act). The case of
petitioner was that in terms of the provisions as
contained in Section 3 of the 1977 Act, the
petitioner was submitting the returns with
regard to the consumption of water, however,
without following the mandatory provisions as
required under Section 3, assessment orders
came to be passed against the petitioner on
08.03.2013 & 04.03.2015 assessing the liability
against the petitioner for the period 01.05.2010
10 All. M/S Dev Priya Indus Pvt. Ltd. Vs. Cess Appellate Comm., U.P. Pollution Control Board,
 Lko. & Ors.
801
to 31.03.2012 and 01.04.2012 to 31.08.2014,
respectively.

4. It is argued by the counsel for the
petitioner that the said assessment orders were
passed in pursuance to provisions contained in
the Cess Act, however, neither any opportunity
of hearing was granted before passing the
assessment
order
nor
any
basis
for
determining the liability was indicated in
the assessment orders, which is on record
as Annexure No. 2 to the writ petition and
is also under challenge in the present
proceedings. It is further argued that on the
basis of the assessment orders, which do
not disclose any reason whatsoever and
also on the face of it, is without affording
any opportunity of hearing, was challenged
by the petitioner by preferring an appeal
under Section 13 of the said Act before the
appellate Tribunal constituted under the
Act. It is further argued that before the
appellate authority specific ground with
regard non grant of any opportunity of
hearing or any material based upon which
the assessment orders were passed and also
pleaded that the fact that no reasons for
passing
the
assessment
orders
were
indicated, the appeal deserved to be
allowed, however, the appellate authority
although recorded said submission, did not
deal with the same while deciding the
appeal, as such, said two assessment orders
and orders in appeal are being challenged
by the petitioner by way of filing the
present writ petition.

5. The counsel for the respondent
argues that against the appellate order
passed under Section 13 of the Cess Act, 1977,
an appeal lies before the National Green
Tribunal by virtue of Section 16(d) of the
National Green Tribunal Act, 2010 and, as such,
the petitioner should be relegated to avail the
alternative remedy under the said Act. He
further argues that in terms of the provisions of
1977 Act, the appeal provided under Section 13
is in fact a post decisional hearing and thus,
submission of the counsel for the petitioner that
no opportunity of hearing was granted at the
time of the assessment order merits rejection on
that count also as the petitioner was admittedly
heard at the appellate stage.

6. In response to the preliminary
objection raised by the counsel for the
respondent with regard to the availability of
alternative remedy, the counsel for the
petitioner argues that it is fairly well settled
that where the orders impugned are in
violation of principle of natural justice or
without jurisdiction, the availability of the
alternative remedy is not an absolute bar.
She places reliance on the judgment of the
Supreme Court in the case of Whirlpool
Corporation v. Registrar of Trademarks,
Mumbai and Ors. - (1998) 8 SCC 1. She
thus argues that preliminary objection with
regard to the availability of alternative
remedy should be rejected. She further
places reliance on the judgment of the
Supreme Court in the case of Tin Box
Company, New Delhi Versus CIT, New
Delhi (2001) 9 Supreme Court Cases 725,
wherein the Supreme Court came down
heavily on the assessment order being
passed without granting an opportunity of
hearing and the same were held to be bad in
law.

7. In the light of submissions made
herein above, this Court is to decide the
validity of the impugned orders in the
present writ petition on the touch stone of
violation of principle of natural justice
alone. On perusal of the assessment orders
contained in Annexure No. 2 & 3, it is clear
that no basis of assessment has been
indicated. The power of assessment, vests
in the authority by virtue of Section 3 of
the 1977 Act. Section 4, 5 and 6 of the said
Act provide for the submission of returns
by the consumer and Section 6 empowers
the authority to take action after making an
enquiry as is deemed fit and Section 6 (1A)
confers the power to determine the quantum
of cess after following the procedure as is
prescribed under Sections 4, 5 and 6(1) of the
802 INDIAN LAW REPORTS ALLAHABAD SERIES
said Act. Section 3, 4, 5 and 6 of the Act are
quoted herein below:-

"3. Levy and collection of cess.?(1) There
shall be levied and collected a cess for the
purposes of the Water (Prevention and Control
of Pollution) Act, 1974 (6 of 1974) and
utilisation thereunder.

(2) The cess under sub-section (1) shall be
payable by?

(a) every person carrying on any 3
[industry]; and

(b) every local authority,

and shall be calculated on the basis of the
water consumed by such person or local
authority, as the case may be, for any of the
purposes specified in column (1) of Schedule II,
at such rate, not exceeding the rate specified in
the corresponding entry in column (2) thereof,
as the Central Government may, by notification
in the Official Gazette, from time to time,
specify.

[(2A) Where any person carrying on any 3
[industry] or any local authority consuming
water for domestic purpose liable to pay cess
fails to comply with any of the provisions of
section 25 of the Water (Prevention and Control
of Pollution) Act, 1974 (6 of 1974) or any of the
standards laid down by the Central Government
under the Environment (Protection) Act, 1986
(29 of 1986), cess shall be, notwithstanding
anything contained in sub-section (2) of this
section, calculated and payable at such rate,
not exceeding the rate specified in column (3) of
Schedule II, as the Central Government may, by
notification in the Official Gazette, from time to
time, specify.]

(3) Where any local authority supplies
water to any person carrying on any 1
[industry] or to any other local authority and
such person or other local authority is liable to
pay cess 2 [under sub-section (2) or subsection
(2A)] in respect of the water so supplied, then,
notwithstanding anything contained 3 [in those
subsections], the local authority first mentioned
shall not be liable to pay such cess in respect of
such water. Explanation.?For the purposes of
this section and section 4, "consumption of
water" includes supply of water.

4. Affixing of meters.?(1) For the purpose
of measuring and recording the quantity of
water consumed, every person carrying on any
1 [industry] and every local authority shall affix
meters of such standards and at such places as
may be prescribed and it shall be presumed that
the quantity indicated by the meter has been
consumed by such person or local authority, as
the case may be, until the contrary is proved.
(2) Where any person or local authority fails to
affix any meter as required by sub-section (1),
the Central Government shall, after notice to
such person or local authority, as the case may
be, cause such meter to be affixed and the cost
of such meter together with the cost for affixing
the meter may be recovered from such person or
local authority by the Central Government in
the same manner as an arrear of land revenue.

5. Furnishing of returns.?4 [(1)] Every
person carrying on any 1 [industry] and every
local authority, liable to pay the cess under
section 3, shall furnish such returns, in such
form, at such intervals and containing such
particulars to such officer or authority, as may
be prescribed.

5 [(2) If a person carrying on any 1
[industry] or a local authority, liable to pay the
cess under section 3, fails to furnish any return
under sub-section (1), the officer or the
authority shall give a notice requiring such
person or local authority to furnish such return
before such date as may be specified in the
notice.]

6. Assessment of cess.?(1) The officer or
authority to whom or which the return has been
furnished under section 5 shall, after making or
causing to be made such inquiry as he or it
thinks fit and after satisfying himself or itself
that the particulars stated in the return are
correct, by order, assess the amount of cess
payable by the concerned person carrying on
any 1 [industry] or local authority, as the case
may be.

6 [(1A) If the return has not been
furnished to the officer or authority under subsection (2) of section 5, he or it shall, after
making or causing to be made such inquiry as
he or it thinks fit, by order, assess the amount of
cess payable by the concerned person carrying
10 All. M/s Gold Ripe International Pvt. Ltd., Meerut Vs. A.D.G., Directorate of Revenue
 Intellilence Lko. & Ors.
803
on any 1 [industry] or local authority, as the
case may be.]

(2) An order of assessment made under
sub-section (1) 6 [or sub-section (1A)] shall
specify the date within which the cess shall be
paid to the State Government.
(3) A copy each of the order of assessment made
under sub-section (1) 6 [or sub-section (1A)]
shall be sent to the person or, as the case may
be, to the local authority concerned and to the
State Government.

(4) The State Government shall, through
such of its officers or authorities as may be
specified by it in this behalf by notification in
the Official Gazette, collect the cess from the
person or local authority liable to pay the same
and pay the amount so collected to the Central
Government in such manner and within such
time as may be prescribed. "

8. In the present case, specific assertion of the
counsel for the petitioner is that no opportunity
of hearing was granted and was not even dealt
with by the appellate Court while recording the
reasoning while dismissing the appeal preferred
by the petitioner. The assessment orders also do
not indicate any opportunity of hearing being
granted to the petitioner. The assessment orders
are also bad in law as the same does not record
any reason whatsoever in determining the
quantum of cess against the petitioner. In the
Act and the provisions quoted herein above,
although there is no specific provision for
opportunity of hearing prior to passing of the
assessment orders, it is fairly well settled that
any order more so which is expropriatory in
nature has to adhere to the principle of natural
justice, even if not specifically provided as also
explained by the Supreme Court in the case of
M/S Dharmpal Satyapal Ltd. Versus Dy.
Commissioner of Central Excise, Gauhati &
Others (2015) 8 SCC 519. Thus on the face of
the assessment orders, there is a violation of
principle of natural justice. The submission of
the counsel for the respondent that the appeal
provided under Section 13 of the 1977 Act, in
fact is a post decisional hearing cannot be
accepted for the sole reason that Section 13 of
the Act by the very word used in the statute is
an appeal against an order of assessment and
cannot be termed as post decisional hearing as
is argued by the counsel for the respondent.

9. Thus, for the reasons recorded above,
and the fact that the assessment orders have
been passed in violation of principle of natural
justice and are also an unreasoned order, cannot
be sustained and thus on that limited ground the
assessment orders as well as the appellate order
are quashed. The assessing authority shall have
the liberty to pass a fresh order strictly in
accordance with law, if so advised.

10. The writ petition stands disposed of.
----------
(2023) 10 ILRA 803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ Tax No. 495 of 2021

M/s Gold Ripe International Pvt. Ltd.,
Meerut ...Petitioner
Versus
A.D.G.,
Directorate
of
Revenue
Intelligence Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohit Singh, Sri Ajay Kumar Rai, Sri Nishant
Mishra, Pratima Srivastava, Priyanka Midha, Sri
Ram M. Kaushik, Sri Priyadarshi Manish, Sri Anil
Kumar

Counsel for the Respondents:
Sri Ashok Singh, C.S.C., Sri Krishna Agarwal, Sri
Sudhanshu Kumar, Sri Swapnil Kumar, Sri Uma
Nath Pandey

Held: The petitioner, engaged in importing and
repacking Ethephon, challenged the detention
and seizure of goods under the Customs Act,
1962,
alleging
no
prohibition
existed
on
Ethephon's import under the Insecticides Act,
1968, and claiming exemption under Section