M/S BHAGESHWARI PAPER LTDversusSTATE OF UP AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 12158 of 2026

M/S Bhageshwari Paper Ltd
                                                           .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Aditya Krishnatreya, Mihir Ghosh Roy
Counsel for Opposite Party(s) : A.S.G.I. (Senior Advocate), Alok
                                Ranjan Mishra, G.A.

Court No. - 73
                   HON'BLE VIKRAM D. CHAUHAN, J.

1. Heard Sri Amit Krishan, learned Senior Counsel assisted by Sri Aditya
Krishnatreya, learned counsel for the applicants, Sri Dhananjay Awasthi,
learned counsel for the CGST, Sri Alok Ranjan Mishra, learned counsel for
the Union of India and learned A.G.A. for the State.

2. The present application has been filed by the applicants for quashing the
summoning order dated 8.10.2025 passed by Special Chief Judicial
Magistrate, Meerut in Complaint Case No. 18016 of 2025 (Union of India
Vs. M/s Trikoot Iron & Steel Casting Ltd. & 11 others) under Section 9 and
9AA of Central Excise Act, 1944, CGST, Division-I, Muzaffar Nagar as
well as the entire proceedings of the aforesaid case.

3. Learned Senior Counsel appearing for the applicants submits that
Directorate General of Goods and Services Tax Intelligence on the basis of
inputs received that M/s Trikoot Iron and Steel Casting Limited (TISCL) is
resorting to large scale of evasion on central excise duty. In pursuance
thereof, office and premises of the aforesaid company was searched and
loose sheets, hard disks, pen drives were seized. Learned Senior Counsel
appearing for the applicants further submits that in the aforesaid search
conducted, the invoices issued by the applicants have also been found in the
records of Directorate General of Central Excise Intelligence (DGCEI) and
thereafter show cause notice was issued to TISCL as well as applicants for
demand of duty and duty was adjudicated and confirmed by order dated
30.6.2021 against all applicants including TISCL. The applicants as well as
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TISCL filed separate appeals before the Tribunal and the Tribunal by
common judgment dated 8.5.2025 allowed the appeals and set aside the
demand duty and imposition of penalties on the applicants. Learned Senior
Counsel appearing for the applicants further submits that to the best of
knowledge of the applicants till date the order of the Tribunal has not been
challenged in the higher forum. Learned Senior Counsel further submits that
once the Adjudicating Authority assessment has already been set aside by
way of an appeal then summoning the applicants under Section 9 and 9AA
of Central Excise Act, 1944, CGST would not be tenable under law.

4. Learned counsel for the CGST submits that there is requirement of giving
any opportunity of hearing prior to issuing of summons under the CGST
Act.

5. At this stage, learned counsel for respondent no. 2 submits that impugned
order dated 8.10.2025 has been passed without giving any opportunity of
hearing to the applicants in compliance of the provisions of Section 223 of
the BNSS. Section 223 of BNSS is quoted hereinbelow:-

"223. Examination of complainant.-(1) A Magistrate having jurisdiction
while taking cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate
without giving the accused an opportunity of being heard:

Provided further that when the complaint is made in writing, the Magistrate
need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 212:

Provided also that if the Magistrate makes over the case to another
Magistrate under section 212 after examining the complainant and the
witnesses, the latter Magistrate need not re-examine them.

(2) A Magistrate shall not take cognizance on a complaint against a public
servant for any offence alleged to have been committed in course of the
discharge of his official functions or duties unless-

(a) such public servant is given an opportunity to make assertions as to the
situation that led to the incident so alleged; and
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                                                                   3

                                    (b) a report containing facts and circumstances of the incident from the
                                    officer superior to such public servant is received."

                                    As such, the matter may be remanded back to the Chief Judicial Magistrate
                                    concerned for decision afresh after giving opportunity of hearing to the
                                    applicants.

                                    6. In view of the statement made by learned counsel for respondent no. 2, the
                                    impugned order dated 8.10.2025 passed by Special Chief Judicial
                                    Magistrate, Meerut in Complaint Case No. 18016 of 2025 (Union of India
                                    Vs. M/s Trikoot Iron & Steel Casting Ltd. & 11 others) under Sections 9 and
                                    9AA of Central Excise Act, 1944, CGST, Division-I, Muzaffar Nagar is
                                    hereby set aside and the matter is remanded back to the Chief Judicial
                                    Magistrate concerned. The applicants shall appear before the Chief Judicial
                                    Magistrate concerned on 25.5.2026. On the aforesaid date, after hearing both
                                    the parties, fresh order shall be passed on the complaint of the respondent
                                    no. 2.

                                    7. With the aforesaid observation/direction, the application under Section
                                    528 BNSS is allowed.



                                                                                      (Vikram D. Chauhan,J.)
                                    May 6, 2026
                                    VMA




Digitally signed by :-
VISHWA MOHAN ARORA
High Court of Judicature at Allahabad