Allahabad High Court

M/S TRIKOOT IRON & STEEL CASTING LTD AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 5 May 2026
Bench: VIKRAM D CHAUHAN

Holding

The summons order is set aside for violation of Section 223 BNSS, and the matter is remanded for a fresh hearing.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a summons dated 8 October 2025 issued by the Special Chief Judicial Magistrate, Meerut, in a complaint under Sections 9 and 9AA of the Central Excise Act, 1944 and the CGST Act. They contended that the summons was issued without any prior notice or opportunity of hearing, violating the proviso to Section 223 of the BNSS, and that the underlying assessment had already been set aside by an appellate authority, rendering the criminal proceedings untenable. The court examined the procedural requirements of Section 223 BNSS and found that the magistrate had indeed taken cognizance without hearing the accused. Consequently, the court set aside the summons order and remanded the matter back to the Chief Judicial Magistrate for a fresh hearing. The application under Section 528 BNSS was allowed.

Issues considered

Whether a summons under Sections 9 and 9AA of the Central Excise Act can be issued without giving the accused an opportunity of hearing as mandated by Section 223 of the BNSS.
Whether the setting aside of the assessment order by the appellate authority bars the initiation of criminal proceedings under the Central Excise Act.
Whether the procedural lapse in granting a hearing invalidates the magistrate's cognizance of the offence.

Legislation cited

BNSS — s. 223
Central Excise Act, 1944 — s. 9, 9AA
CGST Act

Subjects

summons
opportunity of hearing
Section 223 BNSS
Central Excise Act
criminal procedure
quash
remand

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 16741 of 2026

M/S Trikoot Iron & Steel Casting Ltd And 3 Others
.....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) : Dhananjay Awasthi, 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
applicants have been summoned by 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. Learned Senior
Counsel appearing for the applicants further submits that summoning order
has not been preceded by any notice to the applicants neither any
opportunity of hearing has been given in pursuance to proviso to Section 223
of the BNSS. Learned Senior Counsel appearing for the applicants further
submits that in respect of the alleged violation, the assessment was made by
the Adjudicating Authority after issuing show cause notices dated 10.2.2015
and 26.12.2015 and thereafter an order of assessment was passed on
30.6.2021. Learned Senior Counsel appearing for the applicants further
submits that the aforesaid assessment order dated 30.6.2021 was subject
NA528 No. 16741 of 2026
2

matter of an appeal being Excise Appeal No. 55779 of 2023 (M/s Trikoot
Iron & Steel Casting Ltd. Vs. Additional Director General. Learned Senior
Counsel appearing for the applicants further submits that in the aforesaid
appeal the assessment order dated 30.6.2021 has been set aside and
therefore, as on date there is no assessment or penalty against the applicants.
It is further submitted that the present criminal proceedings arises out of the
same show cause notices dated 10.2.2015 and 26.12.2015 which culminated
in the setting aside of the assessment order by the Appellate Authority.
Learned Senior Counsel appearing for the applicants further submits that
order of the Appellate Authority dated 9.9.2024 is subject matter of
challenge by the department before this Court by way of an appeal and the
same is pending consideration. 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
NA528 No. 16741 of 2026
3

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
(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

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